delivered the opinion of the court. On the trial of this cause, the judge a quo being of opinion that the plaintiff had not made out his case, informed the defendant’s counsel, that it was not necessary for him to introduce any evidence, and judgment accordingly in his favor. We think, from an examination of the testimony, that justice cannot be done, without having this evidence before us. The cause must therefore be remanded for a new trial. *188It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, that this cause be remanded to be tried anew, and that the appellee pay the costs of this appeal.