Prodot v. Doe ex dem. McCaleb

Mr. Justice Yerger.
delivered the opinion of the court.

This case has been submitted on a motion to dismiss the writ . of error, because, it is alleged, that the plaintiff in error, since that writ was sued out, has obtained an injunction in chancery, and it is insisted that his action therein was equivalent to an actual release of errors, and should be so regarded.

No release of errors has, in fact, been made. If it had been, that fact would have required a plea, in order-that it might be noticed by the court; and as the constructive release insisted upon cannot occupy more favorable ground than a regular release, we cannot entertain this motion to dismiss. This point has been directly adjudicated in the case of Vicks’s Executor v. Maulding, 1 Howard, R. 217; and we shall conform our practice to the rule there laid down.

Let the motion be overruled.