In the present case, the court are called upon, by petition, to issue a writ of mandamus to the chief justice of the court of common pleas, to require him to allow bills of exceptions, in the two cases above named. The petition calls for the exercise of one of the highest judicial powers known to the law, and of a grave and delicate character. It is a salutary power, the application for which is addressed to the sound judicial discretion of the court, and is to be exercised to prevent the failure of justice, vhen other remedies have failed, or prove inadequate.
The facts, upon which this application is founded, as we understand them, are briefly these. When the actions were tried in the court of common pleas, a rule of law was stated by the counsel for the defendants, as applicable to the cases, and was not controverted by the plaintiff’s counsel, and was adopted and stated by the judge, as a rale of law, in his charge to the jury. Afterwards, and after verdicts were returned for the defendants, the plaintiff moved the same court for a new trial, for a misdirection in matter of law; that court having power to grant a new trial. This motion was argued at the same term and was overruled by the court. Afterwards, but at the same term, the plaintiff presented his bill of exceptions to the instructions of the court, at the trial, with a view to raise the same questions of law, which were considered in the motion for a new trial. The learned judge declined to allow the exceptions.
Whatever may be the power of this court to issue a writ of mandamus to the judge of another court, we are clearly of opinion, that it ought not to be exercised in a casé like this.
Whilst the law sedulously provides for securing and guarding every right of suitors, it requires that such rights shall be *312claimed and asserted in due time and in proper order, with a view to prevent delay, surprise, and undue advantage. A party may insist on any irregularity in the process, or on the disability of his adversary. But, by failing to put in a plea in abatement, and pleading to the merits, he waives this privilege, and shall not afterwards insist on such defect. Even where an express requisition of the constitution had not been complied with, inasmuch as it went only to the form of the writ, the defendant was not allowed to defeat the suit, after a plea and trial on the merits. Ripley v. Warren, 2 Pick. 592. This rule is sometimes made by positive law, as in case of a plea in abatement regulated by statute; but the same principle is adopted, as fit to govern the discretion of the court, upon general principles of justice, where there is no positive law, as in case of a motion to dismiss a suit for irregularity or defect of form. Simonds v. Parker, 1 Met. 508. So, where a party knows of an exception to an arbitrator ; he shall not wait and take his chance for a favorable opinion, and then except to the arbitrator, if the judgment be against him. Such a proceeding is inconsistent with good faith and fair dealing. Fox v. Hazleton, 10 Pick. 275. So of an exception to a juror, and for the same reason. Davis v. Allen, 11 Pick. 466.
When the old law of review was in force, by which a losing party might have a review, as a matter of right, the court uniformly declined entertaining a motion for a new trial, on questions of law, unless the party making it would waive his right to a review. This was founded upon the plain principles of right and justice. So with a motion to the court of common pleas, to reconsider its opinion in matters of law, with a view to grant a new trial in that court if erroneous, and if otherwise to confirm the verdict. It is a motion, which, as we understand, that court is not bound to consider; and' we think it ought not to be considered, unless it is understood, that the parties intend to abide the result. It would be inconsistent with the duty which the court owe themselves, and unjust to the adverse party, to entertain a motion, and enter into a *313discussion of principles of law, involving delay, labor, and expense, leaving it to the option of the party moving, to profit by the opinion, if in his favor, and to repudiate it, if against him.
We think that these principles are applicable to tne present case. The plaintiff acquiesced in the rule of law, laid down by the judge at the trial, as stated by both parties, and asked for no different direction, whilst it would have been available by influencing the verdict, and took no exception until the verdict was rendered against him. Without pausing to consider whether he could demand the allowance of a bill of exceptions, and supposing he could, if, instead of doing this, he requested the court to do what they were not bound to do, that is, to reconsider the law in that court, with a view to a new trial, if it had been wrongly stated at the trial, and the court consented to hear such request, it must have been upon a tacit if not an express consent, that the decision should be final, and consequently amounted to a waiver by the plaintiff of his right to take exceptions, if the decision should be against him
Petition dismissed.