
    *Commonwealth v. Foggy.
    June, 1836.
    Practice — Demurrer—Effect of Overruling — Pleading-over — Case at Bar. — Upon a demurrer to an indictment for unlawful graining: being' overruled, the defendant cannot have leave to plead not guilty without offering to withdraw his demurrer; the court may, in its discretion, give him leave to withdraw his demurrer, and to plead; but if he does not withdraw his demurrer and obtain leave to plead, judgment should be given for the fine and costs, not that the defendant shall answer over.
    
      Case adjourned from the circuit supe-riour court of Montgomery. The grand jury indicted Foggy, 1. for unlawful gaming at a tavern, “by playing at cards at a game called vantoon;" and 2. for unlawful gaming at a tavern “by playing at cards, ” without specifying the game. The defendant demurred to the indictment, and the court overruled the demurrer. The defendant then tendered the plea of not guilty, stating at the time that he was ready for trial. Whereupon the court, with the defendant’s consent, adjourned the following question to this court: What ought to be the judgment of the court? ought it to be a judgment of respondeas ouster, or a judgment for the fine and costs?
    
      
      See monographic note on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
   PARKER, J.,

delivered the resolution of the court- — The court is of opinion, and doth decide, that, although it was competent for the court below to have rendered a judgment for the fine and costs, the defendant not having offered, at the time he tendered his plea of not guilty, to withdraw his demurrer; yet that, in exercising a sound discretion, the court might have entertained a motion to withdraw the demurrer, and permit the plea of not guilty to be filed, and that such motion may still be made; in which case, it will be competent for the court, in the exercise of its discretion, to grant such leave, and to receive or reject the plea, as circumstances may in its judgment, render proper. And the *court is further of opinion, that if the defendant does not withdraw his demurrer, and obtain leave to file the plea tendered, no judgment to answer over ought to be given, but a judgment for the fine prescribed by law, and the costs.  