The opinion of the court was delivered by

This cause is exactly similar to that, of Eland Smith against the same defendant, ante p. 1825, and with which it was con*1330solidated for the purposes of the trial in the District Court and on this appeal.

Therefore for the reasons therein assigned the judgment appealed from is affirmed.

ON Application for Rehearing.

After a re-examination of this case we affirm our decree heretofore handed down, except that instead of rejecting plaintiff’s demand we amend the judgment of both courts by dismissing plaintiff’s action as in case of non-suit.

It is accordingly so ordered.

The costs of appeal to be paid by appellee, as required by Art. 908 of the Code of Practice, whenever a judgment is amended on appeal.