Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 109

                                
SWENSON ET AL. V3. WALKER'S ADM RS.      109
this court held that " the province of a demurrer is to point out
defects in the pleading demurred to, so that it may be amended."
And in Coles vs. Kelsey [2 Texas R. 5411, the court refused to
consider a demurrer because it was filed after ar answer to
the merits, without leave first having been obtained to amend
the pleadings. If the defendants intended to rely on their
demurrer, they ought certainly to have made known that intention,
and asked the judgment of the court upon it, before the
time for amendment had passed by. Not having done so, they
ought. I think, to be held to have waived it. By the common
law, a demurrer is waived by pleading, or joining in an issue
of fact; and although our statute changes the rule, and, like
the Virginia statute, from which it seems to have been borrowed
[Rev. Code, 510, sec. 88; 2 Brock. 14], allows both law
and fact to be pleaded at the same time [4 Stat. 89, sec. 10],
yet there can be no reason why, in our practice, the questions
of law should not be disposed of before a jury is impaneled to
try the issues of fact. To entertain a demurrer under circuinstances
like the present must, it seems to me, operate a surprise
and fraud upon the plaintiff. It enables the defendant
to conceal and reserve his objections, and by a kind of stealth
to spring them upon the plaintiff when it is too late for him
to meet and obviate them by an amendment of his petition.
It gives countenance and encouragement to unfairness, and
disingenuousness in practice, and ought not, I think, to receive
judicial sanction.
But even if the demurrer was rightly heard under the circumstances,
it did not present the defense of the statute of
limitations; nor is it pretended that that defense was intimated,
even verbally, in argument upon the demurrer, or that
it was intended to have been raised by it. As was said by the
supreme court of the United States of an objection made under
like circumstances with the present: " This objection was not
made in the court below, at the hearing or in the argument, so
that no opportunity was afforded to the petitioner to produce
any evidence on the subject, or to his counsel to answer the
objection. Under such circumstances, it would be dealing to