It is unnecessary for us to decide whether the first section of the act of February 17, 1871, in regard to lateral railroads repeals the latter half of the first section of the act of April 20, -1858, for the reason that under either view of the case the certiorari is premature. The record which it brings up shows upon its face that no final judgment has been entered in the court below. There is now an appeal pending in the common pleas from the award of the jury appointed to assess the damages. Pending that appeal it was improper to bring the record *332up, as such appeal cannot be tried in tbe court below in its absence. See Hall’s Appeal, 56 Pa. 238.
If the petitioner below files his bond and proceeds to construct the road pending the appeal, he will do so at his own- risk. We express no opinion now as to this branch of the case. The plaintiff in error will be protected in any event by this bond.
Writ quashed.