delivered the opinion of the court.
The only question in this case which seems deserving of notice is, as to the correctness of the response of the court to the inquiry propounded by the jury.
In considering of their verdict, it became material for the jury to be informed of the legal effect of the alleged understanding at Liberty to continue the Montgomery cases; and with an express reference to this understanding, and in answer to an .inquiry in which it was assumed as true by the jury themselves, they were instructed that “ the right of continuance was at the discretion of the judge.” This, to the minds of the jury, must have been decisive of the question. It was, in effect, to say to-*143■them that the judge at Liberty could, at his discretion, legally continue the cases pending in the court thereafter to he holden in Montgomery; and the inference by the jury must have been that, having done so, the defendant was excused from attending at Montgomery, as the attorney of the plaintiff in the prosecution of his suits there.
Upon the most obvious principles, this response of the court must he understood as an affirmative answer to the precise inquiry propounded by the jury, and so understood, that it was erroneous, and well calculated to mislead, cannot admit of doubt.
However true the instruction given may have been, consid--ered in the abstract, that it was not so in its application, in the present case, is quite too clear for argument.
"We are of opinion, therefore, that the judgment be .¿versed, and the cause remanded for further proceedings.