I concur, being satisfied with the reasons of this opinion.
It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and this court proceeding to give such a judgment as in their opinion ought to have been given in the court below; it is ordered, adjudged and decreed, that there be judgment as in case of non-suit, and that the plaintiff pay costs in both courts.