By the Court,
Nelson, Ch. J.I was at first struck with the force of the reason urged in favor of a decision on the writ of error as to the plea sustained on demurrer by the court below, without requiring the party to go on and try the issues of fact, as it went to the whole cause of action, *668and refused to quash the writ, thinking it useless the parties should tie at the expense-of trying those issues in the face of.the opinion of the court. But 1 am now satisfied it should have been quashed. I was led into the mistake by allowing the legal import of the pleadings on the record 'to be controlled by the opposing affidavit; whereas nothing, short of a change of such import or effect entered upon the record itself, should have been regarded. If both counts included the same cause, of action, and a valid bar to one would be equally so to the-,other, and the plaintiff wished to avoid the expense of trying the issues formed upon both, he should have en- ■ tered a nolle, prosequi as to one. That would afford .the best and safest evidence of the fact, and nothing short can be;allowed for the purpose of this writ- . '
It is only upon the idea that the wjiole matter is disposed of and ended in the court below, that the writ of error can be sustained; and that should be determined from an inspection of the record itself, not by affidavit. Metcalfs case, 11 Coke, 38, is decisive upon, this point." , It is there said in the second resolution, that the words in the writ sijudiL .cium inde redditum sit, &c. are intended not only a judgment in- the chief matters in controversy, but also in the. whole, so that the suit may be at an end. Several examples are given. Such as an action of trespass for taking cattle: as .to parcel,'the-defendant pleaded not guilty ; and-as to the other, he pleaded" another plea, to which there was a demurrer, afterwards the issue was found for the plaintiff, upon which he had judgment; but error would not" lie till the whole matter was determined. The reason given is, that -if the record should "be removed, before.' the whole matter be determined in the court below, there would be a failure of justice, for the' king’s bench cannot proceed upon the matters hot determined, and upon which no judgment is given ; and .the whole record ought to be in the common pleas or king’s bench ; “ it is entire, and cannot bé herez and there likewise.” The court below is not authorized to send the record till the whole matter is determined. . The writ is conditional, si judicium inde redditum sit, tune recordum, et processum, Spc. mittatis, fyc. The word inde, it is said, *669goes to the entire matter, and until that is determined, the record and proceedings are not to be sent by the terms of the writ.
Lord Coke mentions one or two exceptions to the general rule in Metcalf’s case, p. 41, but they are out of the ordinary proceedings in a suit, and stand upon grounds peculiar to the particular case and mode of proceeding. Where the determination below shows that the party is entitled to judgment upon the whole record, there, though there may be other issues, error may be brought; the case then falls directly within the reason of the general rule. The whole matter is disposed of and at an end. 1 Saund. 80, n. 1. The case of Jack v. Martin, 12 Wendell, 311, is an example, and the remark will explain some other cases cited by the counsel for the plaintiff here. It will not, I admit, explain the case of Post v. Jackson, 17 Johns. R. 239 and 479, and perhaps others, but these must have been carried up without the objection taken, and stand upon the acquiescence of the parties ; or possibly the whole case may have been disposed of below, though not stated in the report of the case.
I am clear, therefore, that the writ must be quashed; but as the attorney for the plaintiff in error proposes now to enter a nolle prosequi upon the other count, he may do so in the court below, as of the term judgment was rendered on the demurrer, on payment of the costs of the issues upon it to the defendant’s attorney, in 20 days after service of a copy of this rule; in that case, the writ to stand; otherwise, to be quashed.
As the motion was before unadvisedly denied, the attorney for the plaintiff must refund the costs paid on that motion.
No costs of this motion on either side.