Error to Madison.
A writ of error does not lie until the final judgment in bar of the action is entered, and the statute does not run against a party until he is entitled to his writ of error.
At the August term 1839, the Circuit Court sustained a demurrer to the declaration, and granted leave to the plaintiff to amend the declaration, and continued the cause.
At the August term 1840, the plaintiff having failed to amend his declaration, a final judgment was rendered for the defendant, on the demurrer.
A writ of error was prosecuted in December, 1844.
W. Martin, for the defendant in error
now moves the Court to dismiss the writ of error, because it was not sued out within five years.
E. Keating, for the plaintiff in error, resisted the motion.
Per Curiam.
The motion must be denied. On the first decision of the Court, no judgment was entered. A writ of error did not lie, until the final judgment in bar of the action was rendered. The statute does not run against a party, until he is entitled to his writ of error.
Motion denied.