The court is of opinion, that the judgment of the Superior court is erroneous in this, that the instruction asked for by the appellant, was not given. Therefore it is reversed with costs, and a new trial is awarded, in which the instruction aforesaid if required is to be given.

Note. See Robertson v. Ewell, 3 Munf. 1, and Thomas v. Soper, 5 Mem. 28, in corroboration.