pronounced the following opinion of the court.

It appearing by the writ in this case, (which, by oyer, is made a part of the declaration,) that this action was brought against four persons as heirs of Charles Lynch, the elder, the obligor in the bond mentioned in the declaration; and that declaration, and the judgment founded thereon, having only charged three of those persons as such heirs ; the court is of opinion, that the said declaration is defective, and that the said judgment is erroneous.

Judgment reversed, at die costs of the appellant; (the appellees being the party substantially prevailing ;) and judgment entered that the appellant take nothing, &c.