February 24.

delivered the Opinion of the «ourt, to the following effect:

If this case depended upon the replication, the judgment of the court must be in favour oí the defendants. It is certainly bad, inasmuch as it charges the defendants with moneys not collected. But Upon a demurrer the judgment is to be against the party, who committed the first error in pleading.

The want of oyer is a fatal defect in the plea of thé defendants; and the court cannot look at any subsequent proceeding. The plea was bath when pleaded. The judgment must be reversed, and. the éause remanded for further proceedings.

Judgment reversed.