0.\ Application nor Remearlxo.
In this case, a careful review of the evidence, and a reconsideration of those facts which are undisputed, has led us to the conclusion that the plaintiff ought to be allowed a further opportunity to establish the claim which he malms, and that the judgment of this dqurt should be one of non-suit, rather than a final judgment re*1785jecting tlie demand. Wo deem it unuecesssary, however, to grant a rehearing in order to effect this change.
It is therefore ordered, adjudged and decreed, that the judgment heretofore rendered in this case be set aside, and that there be now judgment amending the judgment appealed from in so far as to order that plaintiff’s demand be rejected as in case of non-suit.
It is further ordered and decreed that in all other respects said judgment be affirmed, the costs of the appeal to be borne by the defendant and appellee.
Rehearing refused.