delivered the opinion of the court.

We do not concur with the county court in the instruction which it gave. The only plea was that of non-assumpsit, and under such a plea, advantage could not be taken of the *504misnomer, for such we consider the character of the point presented by the second prayer of the defendant, which the county court gave. The case is identically the same in principle, as that of Bank of Metropolis vs. Orme, 3 Gill, 443.

Judgment reversed and procedendo awarded.