¶1delivered the opinion of the court.
¶2It does not appear to us that any other point was decided by the court, of which the plaintiffs have a right to complain, than that the lot in controversy, not being within the survey of the outboundary of the town of St. Louis as represented on the “ Map X,” was not confirmed by the act of June 13, 1812. Since this opinion was expressed, the question has received the determination of this court, and it is now regarded that the out-boundary as laid down on that map does not affect a title of a a claimant under that act. For the 2d and 3d instructions given by the court below, the judgment will be reversed. We do not believe that this case has been submitted to us in a shape in which we can determine it on its merits without incurring the risk of doing injustice to the parties. In plain cases, where parties have submitted to a non-suit, and it is clear that they can not recover, this court has refused to reverse the judgment of the court below, although erroneous instructions had been given against them. But we do not consider that this is a case of that character. Being of the opinion that the cause in the court below turned on the question to which reference has been made, the judgment will be reversed and the cause remanded ;