We are not convinced that the learned court erred in hold*56ing tbe averments contained in the affidavit of defense were sufficient to carry the case to a jury.

Inasmuch as the case goes back for trial by jury, it is neither necessary nor desirable at this time to express any opinion as to the merits of the questions intended to be raised by the averments referred to.

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