This case was here at the May term, 1859. 12 Inch 424. After it was returned to the inferior Court, the angwer Was withdrawn, and separate demurrers filed to each of the several breaches assigned in the complaint; which were sustained as to six of them, but overruled as to the fourth, which averred the collection of $87.20, and a failure to pay over the same. As to that breach, there was a denial. Trial thereon, and judgment for the plaintiff for $9.10, and against the relators for costs.
It is urged that evidence of payment should not have been received under the issue. Whether it was correctly received, or not, we need not inquire, as no objection to its introduction appears.
The breaches setting out a failure to levy are, in our opinion, sufficient. The Court therefore erred in the ruling on the same.
Was the judgment right as to the costs? No motion was made relative thereto, and consequently no question thereon is presented.
The judgment is reversed, with costs. Cause remanded, &c.