
    [Philadelphia,
    January, 21, 1834.]
    LOGAN and Another against JENNINGS.
    in error.
    Where the action sounds in damages, judgment for the plaintiff on demurrer is interloeutory, and it is necessary before final judgment, that damages should be assessed by a jury. Until final judgment a writ of error does not lie.
    A writ of error having issued to the District Court for the City and County of Philadelphia, it appeared from the record returned to this court, that the action was trespass id et armis quare clausum fregerunt, brought by the defendant in error against the plaintiffs in error. The defendants below filed a special plea, to which the plaintiff below replied specially, and the defendants demurred specially to the replication, assigning various causes of demurrer.
    The District Court gave judgment oil the demurrer in favour of the plaintiff below, and the defendants sued out a writ of error.
    The cause was argued upon the questions arising upon the pleadings; but this court having given no opinion on them, it is unnecessary to enlarge the report by stating them.
    
      P. A. Browne moved to quash the writ of error,
    because the judgment of the court below was not final, and therefore not the subject of a writ of error.
    
      Norris and Rawle, contra.
    
   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,  