Heydenfeldt, J., concurred.

The Court below erred in setting aside the first report of the referee. The plea of the defendant would have been bad upon demurrer, but as no objection was taken at the time, and the case submitted to the referee, this was not sufficient reason for setting aside the report. If it was, we are at a loss to understand why the Court refused to permit the defendant to amend his plea, when it was evident from the report, that the plaintiffs could not recover if the statute was properly pleaded.

This was not only a gross abuse of discretion, but an absolute denial of law and justice, inconsistent with every rule of right or reason.

The judgment .is reversed, and the Court below directed to enter judgment for the amount, $240, with legal interest from the 30th of April, 1853, being the amount first reported by the referee,—the plaintiffs to pay all costs that have accrued in this case subsequent to the filing of said report.