¶1delivered the opinion of the court.
¶2There was nothing in the issues or in the evidence in the *376case to justify the giving of the instruction by which the jury was told the burden of proof was on the plaintiffs; yet it is plain the giving it could do the plaintiffs no harm, inasmuch as in the instructions given for the -plaintiffs the jury was distinctly informed that the facts which established the plaintiffs’ title were admitted by the answer. There was no reason, notwithstanding this misdirection of the jury, why the plaintiffs should not have recovered a verdict under the evidence as it stood, if they had permitted the case to go to the jury; and having therefore unnecessarily suffered a nonsuit, we must, in conformity to a well established rule of this court, refuse to set it aside. Lot the judgment be affirmed.