dissented. He said, he regarded the original declaration as still a part of the pleadings in the case : that the first count in it was clearly bad, and yet the demurrer to it was overruled : that it was not incumbent on the defendant, to move the court at the trial to instruct the jury to disregard that count as faulty, which the court had just decided to be good; and the verdict might have been found on that bad count.
Judgment affirmed.