We are not convinced that the learned court erred in discharging the plaintiff’s rule for judgment for want of a sufficient affidavit of defense. There is no merit in the suggestion of counsel that the action of the court may be sustained on the ground that, under our procedure act of May 25,1887, no affidavit of defense is required, because the suit is on the official bond of the principal defendant. The only ground on which the refusal to enter judgment etc. can be sustained is that the affidavit of defense is sufficiently responsive to the averments contained in plaintiff’s statement of claim to carry the case to a jury; but it is not our purpose to discuss the questions that appear to he involved. Inasmuch as the case goes back for trial, it is neither necessary nor proper for us to express any opinion as to the questions that may then arise.
The appeal is dismissed at plaintiff’s costs, but without prejudice, etc.