
    Treasurers of the State vs. M. C. Wiggins.
    Defects in a replication must betaken advantage of by special demurrer.
    Where the plaintiffs were stated to be the successors of the treasurers to whom the bond in suit was given, if the defendant objects to their beihg the successors, he must plead it in abatement.
    To an action upon the sheriff’s bond, non est factum and performance were pleaded. Issue on the first, and replication that the defendant had collected a certain sum and had not paid it over, pursuant to the order of court; to which the defendant demurred generally. The court overruled the demutrer; the jury found for the plaintiff, on the issue of fact; the Court ordered the condition of the bond to be sub» mitted to the jury, to assess the damages.
    This was an action of debt on a sheriff’s bond*, to which the pleas of non est factum and performance were pleaded. Issue was taken in the former, and a replication put in to the latter, setting forth a breach in not paying over certain monies arising from the sale of air estate in a case of partition, pursuant to the order of court. To the replication the defendant demurred, and the plaintiffs joined therein.
    
      The demurrer was overruled by the court, and the jury found for the plaintiff, on the issue of fact. The defendant then insisted on his right to have the condition of the bond submitted to the jury to assess the damages •, but in as much as in the replication! the sum which had been received by the sheriff under the sale which had been ordered, was particularly set forth, and that fact being admitted by the demurrer, it superceded, in the opinion of the court, the necessity of a reference to the jury ; there being no necessity to prove what the pleadings admit.
    The defendant also claimed the right of entering up a judgment of nonsuit, on the ground, that the plaintiffs had failed to prove that Levy and Elmore, in whose names this action was brought, were the successors in office at the time of bringing the action of the Treasurers to whom, the bond was originally given. In the argument on the demurrer, various objections were also Urged as to the insufficiency of the replication, and noticed in the brief under the following grounds :
    1st. Because the replication did not set out who were the persons injured by the sheriff.
    2d. Because the replication did not show* that the money collected by M. C. Wiggins was collected in.his official capacity.
    3d. Because it was not alleged that the court had ordered a sale in a case of intestacy.
    4th. Because it was not averred that David Archer, to .whom the sheriff Was directed, by the order of court, to pay a part of the sum collected, as guardian, had given the security required by the order of court.
    5th. Because the persons claiming as plaintiffs in this action, had separate and distinct interests.
    The case was tried before Judge Gantt, Spring Term, 1822, at Camden, who overruled all the foregoing objections. The present was therefore a motion for a nonsuit, or a new trial, on the grounds above noticed.
   Mr. Justice Gantt

delivered the opinion of the court.

A demurrer in pleading is an admission by the adverse' party of the fact charged in the count or declaration, plea, replication, &c. but refers the law arising on such fact, to the judgment of the court; and on a general demurrer, which this was, judgment is to be given, as the right shall appear, without regard to any imperfection as to the form of pleading.

It would be unnecessary to go into the distinction between matter of form and substance, formally so strictly regarded in the English courts, and I will only observe, that by several of the staiutes of Jeofails, the distinction has been in a great measure done away. If the plaintiffs were not the successors of the treasurers, to whom the land was given, and advantage was intended to be taken of that circumstance, it ought to have been pleaded in abatement; and as regards the supposed defects in the replication, the defendant to take advantage thereof, ought to have demurred specially. Ostensibly, the plaintiffs appeared to be fairly entitled to deceive certain monies which had been collected by the sheriff under an order of court, founded on proceedings had therein, wherein a sale had been ordered. It was alleged that the sale had been made, that the sheriff bad received the money, and had failed tó pay it over as directed by the order of court. These facts were admitted by the demurrer, and the defendant cannot screen himself under this demurrer, by objections which have nothing to do with the merits of the case. The court are therefore of opinion, that the demurrer was properly overruled, as also the motion for a nonsuit; but they think that the condition of the bond should have been submitted to the jury, in order to the assessment of the damages which had accrued to the plaintiff by the breach assigned j which procedure is ordered before the plaintiffs can take out execution.

Holmes, for the motion.

S. jD. Miller, contra.

Justices Colcock) Nott, Richardson and Hager, concurred.  