LOGAN and Another against JENNINGS, 4 Rawle 355

The opinion of the court was delivered by Rogers J. When the action sounds in damages, as in covenant, trover, trespass, &c. judgment for the plaintiff, on demurrer, is interlocutory, “ that the plaintiff ought to recover his damages,” leaving the amountofthem to be afterwards ascertained, Lilly’s Entries, 57. The case at bar is an action of trespass vi et armis, in which, on a demurrer, the court gave judgment for the plaintiff It is therefore necessary before final judgment, that the damages should be assessed by a jury. But until final judgment, a writ of error docs not lie. Metcalf’s Case, 11 Co. 40.

Russel v. Pratt, 1 Leonard, 193. Lilly’s Entries, 57. We have been requested to give an opinion on the points raised by the demurrer, but this we do not feel ourselves at liberty to do. A writ of error does not remove the record, where final judgment has not been rendered. Wilson v. Ingoldsby, 2 Ld. Raym, 1179, and Canning v. Wright, 2 Ld. Raym. 1531. That the court is bound to quash the writ of error, also appears from the case of Rejindoz v, Randolph, 2 Strange, 834, Vice v. Burton, 2 Strange, 891. If the parties are put to any inconvenience by the delay, it cannot be avoided.

The plaintiff might have had his damages assessed, notwithstanding the writ of error, or the writ would have been quashed at an earlier day. Writ of error quashed,