The Chancellor.
I shall in the first place advert to the charge as to the question of due diligence. The court states that the action was brought against Edward Gilpin as the assignor of [96]*96the bond and mortgage and that in the assignment he acknowledges he executed it for a valuable consideration paid to him by the Bank and that it was done to release him from his indorsement of the notes. If, therefore, says the court, the consideration for which the notes were given up and the compensation intended to be made by the assignment of the bond and mortgage to the Bank, has failed without any default on the part of the Bank, Edward Gilpin, the7 defendant, is responsible in an action for the amount of such failure. The assignment of a bond or mortgage to another for a valuable consideration creates, continues the court, an obligation or implied undertaking on the part of the assignor to pay, if the amount can not be recovered of the obligee or mortgagee, provided there is no stipulation of the parties to the contrary (whether expressed or implied), and provided too, that the assignee has used due diligence to recover the amount.
It was first settled by a judicial decision in the Supreme Court in Kent County in the year 1796, in the case of Graviston v. Freeman that the assignor was liable in an action for money had and received in the case the money due on the bond could not be recovered from the obligor, upon the principle stated by the court in this cause that the money or compensation paid the assignee to the assignor for the bond assigned was paid without a valuable consideration. And the court then said in substance, as the Court of Common Pleas here has said, that a valuable consideration being paid by the assignee creates an obligation or implied undertaking on the part of the assignor to repay the money or compensation given upon the assignment if the money due or to be paid on the bond cannot be recovered. The Court of Common Pleas added, without any default on the part of the Bank. However, notwithstanding the language of the Court of Common Pleas here cited, it is not to be understood when taking with the rest of the charge, to mean unless the bond be sued or prosecuted speedily, the assignee can not recover the money paid upon the assignment.
Here were two specialties assigned by Edward Gilpin on the 21st July 1817 to the Bank: one a bond and the other a mortgage; both dated September 16, 1816. Both were given by John Smith and Joseph Gilpin to Edward Gilpin for the same consideration; and both were assigned by Edward Gilpin to the Bank. Though they were different instruments they were both given to secure to Edward Gilpin the amount of the notes which he had indorsed for Smith and Gilpin, and they were both assigned to the. Bank by Edward Gilpin to satisfy those notes, and discharge him from his liability as indorsor. The bond and mortgage re[97]*97lieved Smith and Gilpin from their liability to Edward Gilpin as indorsor; and they being assigned to the Bank discharged Edward Gilpin from the obligation created by the indorsements. Both assignments, not one alone, made Edward Gilpin liable in case of the failure of both securities. The Bank had both the bond and mortgage assigned to pay the same amount of money; and any default in the Bank in regard to the bond or mortgage operated to discharge the assignor from his liability on both assignments; for these securities were given and assigned to effect a payment or recovery of the same sum of money, so that if the mortgage failed the bond might be effectual, and a default in either operated alike to discharge Edward Gilpin from each and both assignments. The bond never was put in suit, nor was any legal remedy used by the Bank to enforce the payment or recovery of the debt on the bond. This was such a want of diligence on the part of the Bank as to discharge Edward from all liability created by the assignments.
In the opinion of the Supreme Court, in the case of Ruth’s Administrator v. Snow, it was laid down that the assignor is liable if the obligee fails, provided due diligence has been used in speedily prosecuting legal remedies for the recovery of the money; but due diligence must be used or the assignee can revert to the assignor. This opinion is referred to by Chief Justice Read in the case of Ruth’s Administrator v. Snow as having been the principle upon which the court decided in the case of Graviston v. Freeman that the assignor is liable in case of failure by obligor. The case of Graviston v. Freeman was first tried; afterwards, the case of Ruth’s Administrator v. Snow in 1796, and the Chief Justice, in delivering the opinion of the court in the last mentioned case, stated that the counsel for Kuth’s Administrator had referred to a case in the Court of Common Pleas where it was laid down that when it was proved that the obligor had no property, the same diligence was not necessary. But the court said, before the assignor can be made liable the assignee shall lose no time in proceeding and taking all legal means for the recovery of the money. This will depend on the particular circumstances; as to this case the court will consider the several defenses. And, after adverting to the pleas of discount and limitation, he said:
We now pass to the third point. The first process against Smith was nine months and two days and the fourth term after the assignment, three terms having elapsed. The Court consider themselves in duty bound to say this proceeding has not been with that due diligence as to make the assignor liable. But the plaintiff contends that this lapse of time had no tendency to cause this debt to be lost owing to [98]*98Smith’s insolvent circumstances; and a number of judgments and executions against Smith are exhibited to prove this and to satisfy the Court. 1 Esp.N.P. 55, Bickersdike v. Bollman is cited by plaintiff’s counsel (here the judge reads the case).
This case is not analogous to the case before the Court which is founded on an assignment of a bond made by Smith to Snow under the Act of Assembly. No part of the bond had been paid although all the instalments became due 15th September, 1791. We are to consider the circumstances. Smith was well known to Kuth who had been security for Smith. It is presumed Kuth expected that he would get the money from Smith and it is incumbent on the assignee to take legal steps to recover. Here are nine months elapsed after the assignment before suit brought; the judgments and executions are debts of record. When we consider the situation of these parties, the circumstances, and knowledge Kuth had of Smith, the judgments being of record, and that Kuth took the obligation of Smith, it must have been under the expectation and chance of receiving the money from Smith. After Kuth did sue Smith the suit was not prosecuted with reasonable diligence. The suit was brought to August, 1790. No declaration was filed until June, 1795. We are therefore of opinion that the plaintiff cannot recover in this action.
Notwithstanding this charge the jury found verdict for the plaintiff. The defendant’s counsel moved for a new trial and, after argument, Chief Justice Read delivered the following opinion of the Court:
The Court considers this right of action by the assignor against the assignee has been but recently established; and, considering the Act of Assembly [1 Del.Laws 117] by which specialties are made assignable for encouragement of trade and commerce and that the assignee is enabled thereby to support a suit in his own name; and it being found from experience to be a convenient means of commerce, these paper securities answering the end of money, the Court conceived it was their duty to put an end to that vexed question whether the assignee could sue the assignor. When the judgment was given, the Court heard much argument and good argument at the trial, and, having considered the several arguments, they held that under due regulations the right might be more beneficially used than refused. But well knowing unless proper regulations were established that it Would be more pernicious than beneficial, in the case [99]*99of Graviston v. Freeman the Court said the assignee should use all due diligence to make the assignor liable, and that by giving delay through negligence or favor the inconvenience would be greater than the advantages.
Our Act of Assembly having strong resemblance to the Statute of Anne (making promissory notes negotiable and putting them on the footing of bills of exchange, as nearly as they would admit), it was natural enough to resort to precedents in England on similar transactions, our assignments being on such grounds.
The Court considered that a recent prosecution of the bond was necessary, either to have been begun the next term after the assignment or the second at furthest, when the terms were held four times a year; therefore the Court said last evening that this was a matter of law as to the delay of the suit against Smith; that the delay was such as operated against the right of remedy by the plaintiff against defendant. The Court being strongly impressed with the necessity of putting some control on this subject for the sake of certainty and security to the people at large, thought they should deliver the law to the jury.
The judges in England, speaking of the limitation of time to regulate actions by indorsees against indorsers said, it was highly necessary to control the question; that if it was to be determined by a variety of juries, it would be productive of uncertainty and, of course, inconvenience; and therefore it ought to be considered a rule of law to be binding in all cases which might follow. It is in the power of every man, at least resident in the state, as well to make the attempt to receive his money as afterwards to pursue his action in a reasonable time. The Court will not undertake to say what is a reasonable time; and we are not called on in a way as to make it necessary to now limit the time, neither are we situated as the judge in Pennsylvania, [1] Dali. 252. There the motion was a nonsuit. Hearing the whole evidence in this case and stating our opinion, that too much delay had existed to entitle the plaintiff to his remedy, the Court will have it in their power by granting a new trial to hear the opinions of the other twelve men, and we do not conceive that we will by this be taking the ease from the jury.
So a new trial was ordered. After the death of Chief Justice Read this cause was tried before Justice Johns and his associates and it is believed the jury found a verdict for the plaintiff on [100]*100proof being made by plaintiffs that the delay in suing Smith, the obligor, was occasioned by Snow, the assignor.
I have introduced this case of Kuth’s Administrator at large because in it and Graviston v. Freeman were first laid down by any court in this state within my knowledge any principle in relation to suits by the assignee against the assignor for the recovery of the consideration of the assignment of a specialty on the failure or inability of the obligor to pay the debt mentioned in the specialty assigned. The case of Cummins and Kennard v. Smith in the Supreme Court in the year 1816 was decided on a variety of circumstances; but in that cause a suit was instituted against the obligor and in this particular is unlike this case in which no action was ever commenced by the Bank on this assigned bond against the obligors.
In Deputy v. Bradley, in the Court of Common Pleas for Sussex County, it is said to have been ruled that insolvency at the time of the assignment is a sufficient excuse for not bringing a suit. In Darrow v. Hanver, heard October 24, 1821, at an adjournment of the regular term of this Court, a judgment was rendered by the Court [which] laid down no principle in their decision which could stand as a precedent or which could or should influence their own judgment in any future case, leaving the whole subject as to suits brought by the assignee of a specialty against the assignor, entirely open for this Court to decide uninfluenced by any case which has been heretofore before the Court. It is true in that case, as the record stands, it seems as if the Court had settled the point so as to make it a rule for the government of other cases; but no such thing was intended by the Court, and the reasons of the Court do not appear on the record and the Court designed to leave every question on the assignment of specialties open for a more serious and solemn decision.
Clark v. Young and Company, 1 Cranch 181, is a case which was decided by the laws of Virginia and it'seemed to be a principal question whether the assignor or indorsor of a negotiable promissory note should be answerable to the indorsee unless a suit were brought against the maker, he being a known insolvent. The Chief Justice then said the condition annexed to the receipt of a note cannot be presumed to have required that a suit should be brought against a known insolvent, or that it should be brought against the will of the indorsee. If he chose to dispense with it or took measures to prevent it, nothing can be more unreasonable than that he should be at liberty to avail himself of a circumstance occasioned by his own conduct. It is not intended to say that the person receiving such a note is compellable with[101]*101out special agreement to sue upon it in any state of things. It is not designed to say that he may not on its being protested return it to the indorsor and resort to his original cause of action. It is only designed to say that under the circumstances of this case, nothing can be more clear than that there is no obligation to sue.
To understand this case it should be carefully read. A suit had before been instituted in Fairfax County in Virginia against Clark on his indorsement of this note, upon the trial of which cause the court ruled that the plaintiffs, Young and Company, could not maintain this action against him previous to their having commenced a suit and obtained a judgment against the maker of the note and until his insolvency should appear. The suit in 1 Cranch 181 was an action for goods sold and delivered by Young and Company to Clark. The note had been assigned or indorsed to Young and Company in payment for these goods and it is in reference to this suit the Chief Justice said, “The condition annexed to the receipt of the note cannot be presumed to have required that a suit should be brought against a known insolvent.” And that it is only to say that under the circumstances of this case nothing can be more clear than that there was no obligation to sue. The indorsement of the note, [the Chief Justice said,] was not intended as an .absolute payment for said goods nor received as such by plaintiffs, but merely as a conditional payment; yet the defendant below contended that the receipt of the said note under such circumstances, and the institution of the said suit by Young and Company in Fairfax County against Clark upon his indorsement, made the note so far a payment to the said plaintiff for said goods as to preclude them from maintaining any action against said defendant for said goods until they had taken such measures against Edgar [the drawer] as the laws of Virginia required; and the plaintiffs, Young and Company, having instituted the said suit upon the said note against the defendant and having been decided against said plaintiffs, they were barred from sustaining this action against said defendant. The Chief Justice further remarked that in Fairfax the point decided was that the suit against the indorsor would not lie until a suit had been brought against the drawer; in the suit in Alexandria (the action on the case for goods sold and delivered) the point decided was whether the plaintiffs had lost their remedy on the original contract, by their conduct respecting this notes These were distinct points and the merits of the latter were not involved in decision of the former.
Had the suit here been brought against Edward Gilpin as the indorser of the notes and he had insisted on the assignment of the mortgage and bond as a satisfaction and then if a question [102]*102had arisen whether the plaintiffs could maintain an action against him previous to their having entered a judgment and sued out an execution on the bond, the case in Cranch would have been applicable to such supposed suit, but according to Chief Justice Marshall the points in such a suit as that and this would be distinct and the merits of such supposed suit would not be involved in the decision of this. The suit instituted by Young and Company in Fairfax County on his indorsement of the note goes to show that according to the opinion of the Court this action could not be maintained unless the Bank had commenced a suit or entered a judgment and sued out execution against John Smith and Joseph Gilpin and their insolvency had appeared by such proceedings. And in the case in 1 Cranch 181', the decision in Fairfax County is not questioned, and the suit in the action brought for goods sold and delivered is governed by its own peculiar circumstances, and cannot and ought not to operate upon a distinct point and against the solemn decision of the Supreme Court in the cases of Graviston v. Freeman and Ruth’s Administrator v. Snow. In Doug. 496, the Attorney General in his argument said that it had been frequently ruled by Lord Mansfield at Guildhall that it is not an excuse for not making a demand on a note or bill or for not giving notice of non-payment that the drawer or acceptor has become a bankrupt, as many means may remain of obtaining payment by the assistance of friends and otherwise. The court, in their decision of the motion for a new trial on the misdirection of the judge, made the rule absolute on another point on which the direction was wrong and said it was needless to go into this.
In De Berdt v. Atkinson, 2 H.Bl. 336, Justice Buffer refers to the decision of Lord Mansfield and says that the insolvency of the drawer does not take away the necessity of notice when value has been given, but [he goes] no farther. This doctrine has been confirmed in Nicholson v. Gouthit, 2 H.Bl. 609, in the case of a known insolvent, when the Chief Justice said and the other Justices agreed, that a known bankruptcy was not equivalent to a demand or notice. The case of Warrington and another v. Furbor and Warrington, 8 East 242, was not a case depending on any general rules in relation to the acceptance of bills of exchange or to the indorsement of promissory notes, but it was a case of a guarantee. The contract required no act to be done by the creditor to make the guarantees liable, and they were in no form nor in any way parties to the bills of exchange, and no notice of the non-payment of it was necessary for they were bound by their previous written engagement. They stood more like securities in a bond without any notice or proceeding what[103]*103ever, for the payment of the money. And the court there distinguished between guarantees and acceptors of a bill.
The proof given in this cause of the insolvency of John Smith and Joseph Gilpin, the obligors in the bond, is not sufficient to charge'Edward Gilpin, the assignor of the bond, with the amount of the money due or payable upon this bond, because it does not appear that any legal means were used by the Bank for the recovery of the money secured to be paid by the bond. In every assignment of a specialty there is an implied undertaking of the assignor that if the money due or secured to be paid cannot be recovered of the obligor, provided there is no stipulation of the parties to the contrary (either express or implied), that the assignor will pay or satisfy the same to the assignee. But then there is a condition in law annexed to such undertaking that the assignee shall use legal means with due diligence for the recovery of the money of the obligor.
And such a condition involves the assignee in no risk or uncertainty, for he has only to use the legal means in due time and the failure will inevitably fall on the assignor. When the specialty is assigned the law gives full power to the assignee, his executors and administrators in his own name or names to sue for and recover the money contained in any specialty so assigned. This authority to recover the money is completely in the hands of the assignee, and the assignor is entirely divested of all right, power or authority over the same, and cannot coerce the payment of the money. It is incumbent upon the assignee to use all the means which the law affords before the assignor can become liable. There is no other mode to recover money contained in a specialty, and if the assignee will not do so he discharges the assignor from his implied undertaking and takes upon himself the risk of recovery or failure. He is not to say in the first instance that the obligor is insolvent, and to recur to the assignor upon his implied undertaking, because the implied condition in every such assignment (unless it be otherwise agreed) requires him to use all legal means with due diligence for the recovery of the money. There is no question here as to due diligence because it does not appear that the payment of the money has ever been enforced by any legal proceedings against the obligors upon this bond.
As the assignor cannot sue or compel the payment of the money; it is not unreasonable in him to insist that the assignee shall use all the means which the law affords to collect it of the obligor before the money or consideration given or paid for the assigned bond shall be taken as money paid without any consideration which has failed. If the performance of a condition has [104]*104failed and become improbable by the act of God, the performance is excused. So if the condition is not performed by the act of the party who creates it. As when the condition of a bond was that A and his wife should in Easter Term next after the date of the bond levy a fine to B. Lord Hobart said that in this case B was bound to sue out a writ of covenant, otherwise the condition was not broken. So here where the Bank did not proceed at law upon the bond, no obligation was created by which Edward Gilpin can be compelled to pay to the Bank the consideration given or paid for the bond and mortgage. For the Bank by not proceeding on the bond broke the condition upon which the bond and mortgage were assigned by Gilpin and taken by them, that is, that the bond and mortgage should be both enforced by suit or by other legal means according to the nature of those instruments and then on failure of the Bank upon such proceedings, that the assignor should be charged with the loss.
The opinion which I have formed arises from the Act of Assembly about assigning specialties [1 Del.Laws 117], and from the nature of the transaction. And in this case, from the testimony of Mr. Hay, as recorded in the bill of exceptions in the negotiation about the assignment of this bond and mortgage, members of the Bank and Edward Gilpin had the question as to the risk of collection of the money mentioned in their specialties, under consideration, and these notes were given up on the liability of Gilpin upon his assignments, — the Bank considering the assignment as equivalent to the indorsement of the notes. But the liability of Gilpin did extend beyond the obligation which the law imposed upon him, that is, that he should make good any deficiency which might appear, the assignees using due diligence in enforcing the collection of the money recoverable upon these specialties by the use of legal means.
If the plaintiffs below meant to rely upon a special agreement1 they were bound to state [it] in their declaration; and upon the general count alone in the declaration they could not prove a special contract.2 This supposed additional engagement of Edward Gilpin forms no excuse and lays no grounds for a recovery in this action, unless it had been charged in the declaration and made part of the case in the pleadings. As I concur in the opinion of the Supreme Court, as delivered by the Chief Justice Read, that before the assignor can be made liable, the assignee shall lose no time in proceeding and taking all legal means for the recovery; and as it does not appear that any proceeding were had [105]*105by the assignee upon the bond, the assignee cannot recover in this action as the case here appears by the record returned to this Court.
And because the court in their charge to the jury said, that the plaintiffs’ counsel allege that at the time of the assignment of the bond and mortgage aforesaid the defendant promised and engaged to make good any deficiency that might arise from the insufficiency of the bond and mortgage; and that the evidence supports this allegation; and then directed, if the jury consider there is such evidence and they believe the evidence that the defendant did make such promise and engagement, this establishes the liability of the defendant and renders an inquiry into the question of due diligence unnecessary. And again directed the jury that if the evidence adduced at the bar satisfies the consciences of the jury that John Smith and Joseph Gilpin were insolvent at the time of the assignment aforesaid and continued so, this insolvency would be a justification of the plaintiffs in not suing out process or taking other measures against them because in that case such proceedings would be fruitless, and the law requires no one to do that which is vain and nugatory. The charge or direction to the jury in these particulars was erroneous. For, as this case appears from the record, nothing less than the use of legal means for the recovery of the money mentioned in the bond from the obligors and the failure thereupon entitles the Bank to recover of Edward Gilpin the consideration paid or given by them for the assignment of the said bond and mortgage. The insolvency of the obligors as this case stands could be established only by proceedings upon the bond and mortgage and, as it does not appear that the assignees took any legal means to enforce the payment of the bond, they have failed and Edward Gilpin is not liable to answer over to them as the assignor.
My remarks apply to this special case, and to the neglect of the assignee in omitting to proceed upon this bond. The court have further said in their charge to the jury, “We consider the question of due diligence to be a question of fact for the consideration and determination of the jury under all the circumstances of the case. If the jury, when they consider all the facts in evidence, if they believe that the plaintiffs have used due diligence, that is diligence which a prudent man attentive to his interests would have used, then the plaintiffs ought to recover.” And throughout the whole charge the question of due diligence is treated as a question of fact for the jury alone to decide.
Here again the charge is erroneous. The question of due diligence is either a question of law, or it is a mixed proposition of [106]*106law and fact. Whether the circumstances alleged to show that due diligence has been used are true and existed, is a matter of fact; but whether, supposing them to be true they amount to due diligence, is a question of law. Due diligence, reasonable time, probable cause, in malicious prosecution and suchlike cases depend upon the same principle.
In Co.Litt. 56b, this case is stated: if a man seised of a messuage in fee and has certain goods in said house and makes his executors, and dies, the executors shall have reasonable time to carry out the goods of the testator. “This reasonable time,” Lord Coke says, “shall be adjudged by the discretion of the justices before whom the cause dependeth; and so it is of reasonable fines, customes and services, upon the true state of the case depending before them: for reasonablenesse in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices. (Bract, li. 2, ca. 52b) Quam longum esse débet non deflnitum in jure, sed pendet ex discretions justitiariorum. And this being said of time, the like may be said of things incertaine, which ought to be reasonable; for nothing that is contrary to reason, is consonant to law.” This doctrine is supported by Cro.Jac. 204, Hobart v. Hammond, 460, 276. Tri. per Pais 12, 231. 22 Vin.Abr. p. 5, 6, 7, 5.3 Com.Dig.,4 title “Temps,” who says, “what shall be reasonable Time, the Justices are to determine.”
In the modern decisions in England the question has been often discussed and the result of the cases is, that due diligence or reasonable time is a question of law, or a question of law and fact; that the facts being ascertained, or there being no dispute about them, reasonable time or due diligence is a question of law; but when matters which are partly law and partly fact are in issue, and the evidence has been laid before the court and jury, the court shall direct the jury how the law is, and if they find contrary to such direction it is a sufficient reason for a new trial. The cases upon this subject are Eaton v. Southby, Willes 131; Bell v. Wardell, Willes 202; Chamberlyn v. Delarive, 2 Wils. 353 (and this case last mentioned in principle is extremely like the present one); Tindal v. Brown, 1 Term 167. Darbishire and another v. Parker, 6 East 3, in which I refer particularly to the opinion of Justice Grose and Justice Lawrence, the latter of whom says,
“As to whether reasonable notice be a question of law or fact, it must be recollected that the facts stated in the re[107]*107port of Tindall v. Brown were afterwards found in a special verdict, in which the jury did not find whether the notice were reasonable or not; on which special verdict this Court gave judgment for the plaintiff, and that judgment was unanimously confirmed in the Exchequer-chamber. But if reasonable notice were a question of fact and not of law, I am at a loss to know how those judgments are to be sustained; for the jury did not find the fact of reasonable notice, but left that as a question of law, to be inferred from all the circumstances. But if it were a question of fact, there ought to have been a venire de nova in that case.”
Then he adverts to the case in Willes, 202, and the practice on trials for crimes. Afterwards arose the case of Parker v. Gordon, 7 East 385, and there, where there was no dispute about the facts in action by the indorser of an inland bill of exchange against the drawer, what was sufficient proof of notice of nonpayment by the drawee was settled by the court as a question of law; and this case occurred after those mentioned in the notes in 6 East.
In the case of Kuth’s Administrator v. Snow, Chief Justice Read, after adverting to the facts given in evidence, said explicitly in the charge to the jury, “We are therefore of the opinion that the plaintiff can not recover in this action.” And after-wards, on the motion for a new trial, [he] said as to the due diligence that it was a matter of fact; as to the delay of the suit against Smith, that the delay was such as operated against the right of remedy by plaintiff against the defendant and the court considered themselves as in duty bound to say that this proceeding has not been with that due diligence as to make the assignor liable.
All the reasoning of the court in Kuth’s Administrator v. Snow is alike conducive to the interest of the assignors and assignees. It establishes with some degree of certainty the law upon the subject, producing uniformity of decision; and does not leave it to fluctuate upon the opinions of various juries. If this is a matter for the determination of juries then all such cases are placed without remedy, however erroneous such decisions may be; for if it belongs entirely to a jury to decide what is due diligence I do not perceive with what propriety a court can set aside a verdict and grant a new trial, unless in very flagrant cases; as no rule could be established by which assignors and assignees could govern themselves upon the assignment of specialties. The assignment of specialties seems to be more particularly than other cases within the province of the [108]*108court, as the prosecution of a suit may appear upon record testimony, and then if there be any excuse for not having done so the Court may judge of the excuse and instruct the jury thereupon. When it is made a question of law and fact according to circumstances, the court and juries continue in their departments; certain rules will be established and become well known and the assignment of specialties will answer the purpose intended by the legislature.
It has been objected against the plaintiff in error in the argument of this case (in this court by the counsel of the defendant in error), that the counsel of Edward Gilpin, the plaintiff in error, treated this case in the Court of Common Pleas in their arguments on the trial of the issues there joined, as a question of fact to be decided by the jury. However the counsel for the defendant in the Court of Common Pleas may have managed the matter in their arguments on the trial of the issues before the jury, it is presumed that they followed the course which the counsel for the plaintiff in that court took and thereby prescribed, in order to repel the arguments of the plaintiffs and to make the best of their case according to the testimony given to the jury. IBut the case here is not to be decided by the manner of conducting the cause by counsel in their argument, for they must meet the case according to circumstances.
If any agreement had been made, if any act had been done, this Court upon its being placed here on the records could have judged upon it. But to decide upon a cause in this Court upon the arguments of counsel in a court where issues are tried under all the variety of testimony there given, and different modes of managing and debating a cause on such occasion (and specially if the opinions of a court can be anticipated), would put insurmountable difficulties upon gentlemen of the bar. When manifest error has happened “to the great injury of the defendant,” as the writ supposes, and, to use technical language, “by the default of the Court,” it may be assigned for error. The law cannot be altered by any arguments of counsel. William., the heir of William, v. Gurgh, [-]5 42, 43, 47. Error may be released; there may be an agreement not to bring a writ of error. But where the directions of the court are deemed to be erroneous, and those directions may have produced the verdict upon which the judgment has been rendered, it is a fit case for the ultimate decision of this Court.
. For these reasons, I have adjudged that the judgment should be reversed.