delivered the opinion of the court.
The judgment in this case is evidently for the right party, although, under the instruction given for the plaintiffs, it may well be doubted whether the jury might not (from the evidence preserved) have found a verdict for the defendant; and although some of the instructions moved by the defendant and refused might have been given without any violation of legal propriety, yet the merits of the action are so plainly with the plaintiffs, that under that clause of the statute which forbids this court to reverse the judgment of any court unless it shall believe that error has been committed by the court below against the appellant, and materially affecting the merits of the action, we cannot reverse this judgment.
Judgment affirmed.