The first error assigned is matter which should have been pleaded in abatement, and can not now be assigned for error, and the other error assigned must be cured by the statute of jeofails. Therefore, it is considered by the court, that the judgment aforesaid be affirmed, that the defendant may proceed to have the benefit of the same in the court below, and recover of the plaintiff ten per centum damages on the amount thereof, together with his costs in this behalf expended, which is ordered to be certified to the said court.