Martin, J. The facts of this case, and the pleadings, are exactly the same as in that of Gerber v. Marzoni, just decided ; except that, in the present case, the defendant took a bill of exceptions to the opinion of the court overruling his objection to the case being tried on a rule to show cause, especially as he had prayed for a jury, which had not been done in the former case. This last circumstance strengthens his claim to the reversal of the judgment, which would have been sufficiently strong without it.
It is, therefore, ordered, that the judgment be reversed, the rule discharged, and the case remanded for further proceedings according to law ; the plaintiff and appellee paying the costs of the appeal.