Lawson v. Snyder

⁷⁷ The opinion of the court was delivered by Tuck, J. The counsel for the appellee insists, that this case should be affirmed, because appeals were not severally taken to the rulings of the court sustaining the demurrers to the third, fourth and fifth pleas, and that, therefore, the record does not present any “point or question” for the consideration of this court. We cannot distinguish this case from that of Thompson vs. The State, use of Harris, 4 Gill, 163 . That record shews that there was a demurrer and an issue in fact, both of which were decided for the plaintiff, (as here,) and that the judgment and appeal were entered in the same manner. No case has been referred to in which a different mode of making the entries has been observed, except State vs. Crain, and Milburn vs. State, decided at this term.

But there is a plain distinction between the cases. The party who failed on the demurrer, succeeded on the trial of the issues in fact, and obtained the final judgment. The other side appealed on exceptions taken at the trial, and this court, on that appeal, could not consider the questions presented on the demurrer, from which there was no appeals. If the demurrer had been ruled the other way, the appeal from the final judgment would have opened the record, not only upon the exceptions, but also upon the issues in law.

Anderson vs. Chutcher, 11 G. J., 450. 7 G. & J., 109 . The judgment of the court upon the demurrer to the third plea presents the question, “whether a party taken under a ca. sa., can be discharged from arrest, with his own consent and that of the plaintiff, without releasing the debt?” What effect the matter of the plea would have had if relied upon as a defence to the action, according to the laws then in force in the county of Alexandria, D. C., where the judgment was obtained, we are not called upon to decide, as these laws have not been properly brought to the notice of the court. Gardner vs. Lewis, 7 Gill. The counsel for the appellant, however, contends, that the decision of these questions must be governed by the common law alone; and that the case of Harden vs. Campbell, 4 Gill, 29 , is an authority for the re ⁷⁸ versal of the judgment on the second plea.

The defendant in that cause had relied on three pleas, all of which were overruled by the court below. The first claimed his discharge, on the ground that he had been arrested under a previous ca. sa., so that the only question upon that plea was, whether the mere arrest operated to release the judgment? and the Court of Appeals, by affirming the judgment below, decided, that it was attended by no such consequence. But the pourt, upon the demurrers to the other pleas, held, that the arrest of the defendant and his discharge from the custody of the marshal, with the consent of the plaintiff, and without his own concurrence, deprived the plaintiff of his right to another ca. sa. If the mere arrest is no bar to other process on the