The judgment is erroneous, and is reversed with costs. And this court proceeding to render such judgment as the circuit superior court ought to have given, is of opinion, that the matters of law arising on the defendant’s demurrer to the plaintiff’s declaration are for the plaintiff &c. Therefore, it is further considered that the demurrer be overruled. And ordered, that the cause be remanded to the circuit superior court, for an enquiry of damages, unless the defendant shall plead to issue.
Judgment reversed.