Opinion by

We are not convinced that the learned court erred in refusing to enter judgment against the defendant for want of a sufficient affidavit of defense.

Inasmuch as the case goes back for a jury trial, it is neither necessary nor desirable to discuss the questions presented by the affidavit of defense. If the plaintiff had been disposed to waive his right of appeal to this court and proceed to trial, he might have had his-case finally disposed of long ago.

Appeal dismissed, at plaintiff’s costs, without prejudice, etc.