
    John C. F. Butland vs. Barnet M. Hein.
    Middlesex.
    October 15, 26, 1918.
    October 29, 1918.
    Present: Rtjgg, C. J., Bhaley, De Coubcy, Crosby, & Pierce, JJ.
    
      Practice, Civil, Dismissal of case.
    Where upon a record presented to this court it appeared that no question was pending, it was ordered that the case should be dismissed from the docket.
    Contract and tort as described in the opinion. Writ dated September 27, 1915.
    The proceedings in the case are described in the opinion.
    <S. Sigilman, for the defendant, submitted a brief.
    
      W. A. Lackey, for the plaintiff.
   Rtjgg, C. J.

The plaintiff filed what is entitled in this record a “Substitute declaration No. 2,” containing two counts in con-' tract and three in tort. The defendant demurred on several grounds, the first being that the declaration set out in different counts different and distinct causes of action, some in tort and others in contract, which were not for the same cause of action. The demurrer was sustained on, this first ground. The others were not passed on. Thereafter the plaintiff filed a “Substitute declaration No. 2 as amended after demurrer,” by consent of the defendant. No demurrer was filed to this declaration but the defendant answered. There was a trial on this last declaration, and verdict for the plaintiff on two of its counts.

The. only semblance for contention that the case is before us is that, after the demurrer to the “Substitute declaration No. 2” had been sustained on the first ground, the defendant filed a paper entitled “Appeal from order overruling demurrer.” There had been no order overruling any part of the demurrer. Moreover, the case afterwards went to trial on a later declaration to which there was no demurrer, and in those proceedings there was no appeal. Neither the old declaration nor the old demurrer longer -had vitality. There is nothing in this record from which the defendant could appeal. There is nothing pending before us.

Case dismissed.'  