delivered the opinion of the Court. He had looked into the record, and thought that the point had *672not come properly before the Court of Common Pleas, and that therefore the judgment should not be reversed even if there were any misdirection of the court. He said that the court should have been expressly called on for their opinion, and required to charge the jury upon the subject; and then, if the court erred in their direction, it would be proper to review the case in this Court.

Mr. Justice Batson concurred with him, and they were both for affirming the judgment.

Mr. Justice Davis seemed to think that due diligence was a question of law to be determined by the court; but he acquiesced in the affirmation of the judgment.

considered the question an important one, and that it ought to be deliberately decided; but as two of the members of the Court were for affirming the judgment below, he did not object, thinking that whenever an ultimate decision was made, the point should come before the Court in such a form that that should be the single sole matter for consideration.

Judgment affirmed.

[Note.] See the manuscript report, in my possession, of the case Ann Keith and Andrew Nandain, Administrator of Thomas Keith v. James Snow, tried in the Supreme Court in Kent before Read, C. J., and Clayton, J., April 3, 1798. Read said, “The Court consider themselves in duty bound to say this proceeding has not been with that due diligence as to make the assignor liable.” And after going through the case he concluded, “We are therefore of opinion that the plaintiffs cannot recover in this action.” The jury, however, found a verdict for the plaintiff. The verdict was set aside, and a new trial had October 19, 1799, before Johns, Chief Justice and Clayton, Justice of Supreme Court. In the charge the question of due diligence was left very much with jury. “Then, you,” said the Chief Justice, “Are to consider whether there is any limited time for the assignor to sue; then, what is the limited time. A suit must be commenced to the first Court after the assignment etc. The Court apprehends due diligence was not used by suing as the first Court. General rule, but does not say there are no exceptions.” etc., etc.