Although in this case, one exception taken to the charge of the judge to tbq jury, on the trial, is well grounded, and the judge was mistaken in $he direction he gave upon that point; yet as justice, upon the. *110whole, appears to have been done in the case ; and as it further more appears, that the action is not maintainable on the ground stated >n fhe declaration, and that it could not answer any useful end to grant a new trial; let the motion be discharged, and the defendant at liberty to enter up his judgment, 2 Burr. 665. 1 Wils. 22. 2 Bl. Rep. 1222. Edmondson v. Machell, 2 T. R. 4.