delivered the following dissenting opinion:
A majority of the Court, holds that the verdict should be set aside, and a new trial awarded, because the verdict was contrary to the instruction of the Court, even though it be conceded that the instruction be erroneous, and the verdict was in all other respects proper; and that, too, notwithstanding the Court below was satisfied with the verdict, and refused to disturb it.
I dissent from this conclusion. I concede, to the fullest ex*547tent, that it is the duty of the jury, to take the law from the Court, and if they violate that duty, and find a verdict contrary to an instruction, it should be set aside, unless it clearly appears, that the verdict was in other respects proper, and that the losing party has suffered no injury, by reason of a disregard by the jury of the instruction of the Court. Perhaps the injury would be presumed, unless the contrary clearly appeared. But when it is apparent, as in this case, that the instruction was erroneous, and ought not to have been given, and that the verdict was in other respects proper, and that the party has suffered no injury, and particularly, when the Court which tried the cause, is satisfied with the verdict, I can perceive no valid reason, why this Court should set aside the verdict, and remand the cause, in order that the District Court may go through the form of another trial, to result in a similar verdict and judgment. It is the province of the appellate .Court to correct such errors as resulted or may have resulted in an injury to the appellant; but when it clearly appears that no injury has, or could have resulted from the error complained of, it is the constant practice of this Court, to refuse to disturb the judgment.
In my opinion this is a case of that character, and I see no reason for excepting it from the general rule.