LYNES versus THE STATE, 3 Port. 348

Per Curiam. In this case, the plaintiff in error pleaded in abatement, to an indictment against him, for having played a game at cards. To his plea a demurrer was taken by the attorney of the State, which was sustained by the Court. At a term subsequent to that in which the- deck sion of this issue in law was made, Lynes was tried on the indictment, upon his plea of not guilty, and the verdict of the jury was against him.

After the verdict, he moved in arrest of judgment, because the Court had erred, in sustaining the demurrer to his plea in abatement., The Court overruled the motion, and referred the question, as difficult and novel, to this Court, whether the Circuit Court, at a previous term, did err, in sustaining the demurrer? The Circuit Court, upon the motion to arrest the judgment, had no power to review the judgment on the demurrer- The demurrer was decided at a previous term, and by a different judge, who did not express his opinion, that the question which arose upon the demurrer, was novel and difficult.

Had he done so, and reserved it, it might now be considered by this Court. As the Court which referred the question, had no power to determine it, it follows that the Court had none, to decide there was difficulty in the question, and reserve it for the consideration of this Court. Let the reference be dismissed.