PARKER, J., delivered the resolution of the court- — The court is of opinion, and doth decide, that, although it was competent for the court below to have rendered a judgment for the fine and costs, the defendant not having offered, at the time he tendered his plea of not guilty, to withdraw his demurrer; yet that, in exercising a sound discretion, the court might have entertained a motion to withdraw the demurrer, and permit the plea of not guilty to be filed, and that such motion may still be made; in which case, it will be competent for the court, in the exercise of its discretion, to grant such leave, and to receive or reject the plea, as circumstances may in its judgment, render proper.
And the *court is further of opinion, that if the defendant does not withdraw his demurrer, and obtain leave to file the plea tendered, no judgment to answer over ought to be given, but a judgment for the fine prescribed by law, and the costs.