The appellee was the plaintiff below. The Court overruled a demurrer to the reply, but there is no exception taken. Jury trial, verdict, and judgment for the plaintiff below. The defendants below do not move for a new trial, nor except in any manner to the ruling of the Court. The appeal taken in the vacation after, does not operate as an exception.

This case falls within the rules laid down in the statute. 2 It! S. p. 115, and the cases of Zehnor v. Beard, and Young v. McLane, at the present term, expounding *484and applying that statute. ■ For the reasons there given, the judgment must be affirmed (1).

The judgment is affirmed with 5 per cent, damages and costs.