¶1delivered the opinion of the court.
¶2This case is before us on a bill of exception, taken by the defendants to the refusal of the judge to receive the testimo*347ay of the clerk and sheriff, to support the exception they had filed, alleging that one of them had not been served with a true and correct copy of the petition ; it being stated in the petition, that payment of the note sued on “ had been demanded of said defendants [at Harrisonburg, and of the defendants at other places and times ;”] while in the copy, it states only that the note had been demanded of the said defendants, [“ personally at other places and times.”] There was judgment against both defendants, and they appealed.
¶3The District Court, in our opinion, erred in refusing to receive testimony of the fact on which the defendant bases his bill of exception.
¶4It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, as to the defendant Dosson, be annulled and reversed, and that the case be remanded fora new trial, with directions to admit the testimony mentioned in the bill of exceptions; the plaintiffs and appellees paying the costs of the appeal, and that as to the defendant Lovelace, the judgment be affirmed, with costs and ten per cent, damages.