concurred in the opinion of Staples, J.
Anderson, J., though he had some doubt on the question, waived it, and concurred in the judgment.
The judgment was as follows :
This cause, which is pending in this court at its place of session at Wytheville, having been heard but not de*214termined at said place of session: This day came here the parties by counsel; and the court, having maturely ■considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in overruling the the defendant’s demurrer to the declaration, and in sustaining the plaintiff’s demurrer to defendant’s plea of the statute of limitations ; and, as a necessary consequence, it erred in refusing to set aside the verdict and grant the defendant a new trial. It is, therefore, considered by the court that the judgment of the said circuit court be reversed and. annulled ; and that the defendant in error pay to the plaintiff in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here.
And this court, proceeding to render such judgment as the said circuit court ought to have rendered, it is considered that the demurrer to the declaration and each count thereof be sustained; and ás the defendant in error may be able to state on the record some special' damage upon which said action may be sustained—as to the propriety of which this court expresses no opinion—leave is given her to amend her declaration, if she shall so desire.
And the cause is remanded to the said circuit court to be proceeded with accordingly.
And it is ordered that this judgment be entered in the order book here, and be forthwith certified to the clerk of this court at Wytheville, who shall enter the same in his order book and certify it to the said circuit court of Wythe county.
Judgment reversed.