delivered the opinion of the Court.

It seems to the Court, that the question of variance between the promissory note in the proceedings mentioned, and the writing obligatory of which proferí is made in the second count of the plaintiff’s declaration, is not presented by the demurrer to that count of the declaration, no oyer having been craved of the last mentioned writing ; and that the said Circuit Court erred in sustaining, instead of overruling that demurrer. It is therefore considered by the Court that the judgment of the said Circuit Court be reversed and annulled with costs. And it is further considered that the said demurrer to the second count of the declaration be overruled, and the verdict of the jury, together with the defendant’s demurrer to the evidence, set aside, and the cause remanded to the said Circuit Court for further proceedings therein, with leave to the parties, or either of them, to plead de novo.