delivered the opinion of the Court.
As to the first six assignments, the want of replication to the 2d and 3d pleas was the plaintiff’s own omission. The plea of the representatives of Wilson is believed to have been irregular. The plaintiff has no right to complain of *417emissions or irregularities which could not prejudice him. Had issues been formed on all the pleas, a general verdict would have been decisive of all material averments in the declaration and pleas. The Record shews that the parties appeared and went to trial on the merits; and we are left to infer that they waived the special pleas or the want of replications thereto, and to attach to the verdict the same effect as if it had found or ascertained all the matters of fact controverted by the parties. Not to give it this effect would foe to permit a party to take advantage of his own wrong (a).
The 7th. and 8th assignments relate to the charge of the Court as stated in the bill of Exceptions. To charge that from the evidence the plaintiff could not recover, would have assumed matters of fact which it belonged to the Jury .to decide, unless they were conceded, and especially such as relate to the mistake. There does not appear to have been any distinct adjudication in the Court below as to the effect of the mistake, unless it be in the charge as above referred to.
As to the latter part of the charge—that “ inasmuch as the defendants were agents of the Trustees they were not “ liable”—it is the opinion of this Court that the liability of .agents depends on the nature, extent, and foi’m of their engagements ; and in many instances they may be liable for their acts as such. Here then the Record presents no copy of the ticket, nor any thing from which its precise form and legal effect can be ascertained; nor is it shewn whether the mistake in the drawing was .a fact conceded or left to the Jury to determine. We are of opinion that the Court erred in the instructions to the Jury, and that the judgment must be reversed and the cause be remanded fop further proceedings.
Tubb against Madding, ante, 129.
See Henry vs. Smoot, Childress vs. M'Gee, Channing vs. Caskaden, Ripley vs. Coolidge, &c. Hawkins vs. Rapier, &c. ante, 18, 131, 73, 11, 113.