Field, C. J. and Cope, J. concurring.

Upon sustaining the demurrer to the indictment in this case, the District Attorney took no exception; but moved for and obtained an order submitting the case to another grand jury. The People now appeal from this order sustaining the demurrer. We think, under the circumstances, the appeal should be dismissed. A contrary practice would lead to oppression and confusion. The failure to except and taking the order must be considered an acquiescence in the judgment and a waiver of a right of appeal. If the grand jury had found a new bill on the resubmission, no appeal would lie, of course, from any disposition of the demurrer to the first bill; and the resubmission of the matter is not less decisive of the intent to abandon the first indictment, and to hold as final the judgment on the demurrer.

Appeal dismissed.