The answer to the first objection is, that the first count in the declaration is good in assumpsit, for the law will, and always does raise an assumpsit from the misapplication of money received to the use of another. The answer to the second objection is,, that if a terns' intervene between the teste and return of a writ of inquiry, it creates no prejudice to the party, and is, at any rate, only a miscontinuance, which is cured by the statute of jeofails. (Sayer, 245.)
The judgment must be affirmed.-