Horne v. Barney — 19 Johns. 247

Majority

p. 247

Horne against Barney.

Headnote

A writ of flf.j ror will not lie to a Court of Common Picas, where judgment is arrested for the insufficiency of the declaration ; ^ but the plaintiff, in such case, should pray judgment for the defendant, . against himself, and if the Court below refuses to give such a judgment, he inay have a writ of mauds* mus*

IN ERROR, to the Court of Common Pleas of Jefferson county. It appeared, on the return of the writ of error, that the Court below arrested judgment, for the insufficiency of the declaration.

E. Griffn, for the plaintiff in error.

Error will not lie in this case, for there is no judgment to be affirmed or reversed. (Fish v. Weatherwax, 2 Johns. Cases, 215.) You should have applied for a mandamus.

p. 248

Griffin said, that the language of the record showed a judgment of the Court below.

Lynch, contra. There is no judgment for costs, and, therefore, nothing by which the party is aggrieved. The ' plaintiff is not concluded; but may bring another action.

There is no judgment to be affirmed or reversed, in this case. The party may, as he shall be advised, move to quash the writ of error.