On Application por, Rehearing.
Fenner, J.Both parties, plaintiff and defendant, in this case, agree to tlie granting of a rehearing in this case, in order that certain additional facts may he embodied in tlie record, which they offer in the form of admissions, and ask us, on rehearing, to consider said admissions as part of tlie record and to render a new decision on tlie case as thus made up, or, if such cannot he done, to set aside our former decree and remand tlie case in order that opportunity may he given to take testimony as to such additional facts.
This court does not take testimony, nor does it consider cases made up by admissions of facts not presented in the court of first instance, ■whose judgment is brought up for review. This would- he an exercise of original jurisdiction.
But considering tlie consent of parties as above stated a rehearing is now granted; and -acting thereon, it is now ordered that our former decree he annulled and set aside, except in so far as it reversed tlie judgment appealed from, and that the case he remanded to the lower court to he there tried anew and proceeded with according to law, appellee to pay costs of this appeal.