I concur, upon the ground, alone, that no application was made to. a judge, and no proof made of the demand, before the court, under subdivision 3 of section 246 of the Code.
As to the other questions involved, see opinion of Judge Fullerton, in Smith v. Mellen and .others, decided in November, 1867.
Judgment set aside.'
Leonard, Sutherland and Clerke, Justices.]