1. An appeal has been filed in this case, notwithstanding its dismissal, by one of the defendants on the ground that the judgment and decree of the lower Court contain findings which, though immaterial to the decision of the case and unnecessary for the Judge to decide, yet, as they form part of the judgment and decree, might give rise to the application of the doctrine of res judicata hereafter.
2. We think that the appellant is entitled to ask this Court to have the judgment and decree of the lower Court so amended, as to remove from them all the findings of the Judge, except that upon which the decision turned, namely, that the suit as framed could not be brought.
3. The appeal will be decreed, and the judgment and decree of the lower Court will be modified with a view to these remarks. The appellant will get his costs in this Court.