delivered the opinion of the court.
The first bill of exceptions presents the question, whether an endorser of a bill of exchange is bound by a promise to repay the acceptor, the amount of the bill which the acceptor had paid to the endorsee, such promise having been made solely in consequence of the entire ignorance and misconception by the endorser, of the nature and extent of his liability.
The appellant’s counsel has not relied on this exception, and we concur entirely in the opinion of the court below.
The question raised by the second exception is not probably, the precise point intended to be raised by the plaintiffs’ application. The plaintiffs did not assume as the foundation of their motion, any previous contract, or agreement of the defendant with the plaintiffs, or with Norwood, as alleged in the answer, but they rely on his knowledge of the facts and circumstances, in relation to the transactions between Norwood and the plaintiffs.
It is by no means a necessary consequence, that because he knew of the transactions between Norwood and the plaintiffs, he was therefore bound by any engagement made for him by Norwood. Such knowledge may consist with the fact, that Norwood, in making an engagement for the defendant, acted not only without authority, but in direct opposition to his directions.
There was therefore, no such necessary inference, of either a legal or moral obligation, arising from “the knowledge of *340the facts and circumstances, in relation to the transactions between Norwood, and the plaintiffs,” as to justify a direction to find for the plaintiffs.
The court however, in giving the law to the jury, use language very different from that in the plaintiff’s application. They say, there is no sufficient evidence in the cause, that Jones agreed to be responsible to the plaintiffs, in case Norwood should not pay.
The answer of the plaintiffs, which was evidence in the cause, and relied upon by the defendant, states, that Jones put his name upon the bill at the request of Norwood, and did so “expressly to indemnify and secure the plaintiffs against any loss, by reason of such acceptance.” Again, that he did so “ expressly with a view, and under an agreement with Norwood to indemnify and save harmless the plaintiffs, against any loss, or liability,'by reason of accepting said draft.” That it was “ well understood and agreed by all the parties concerned, that Jones was liable in law, and bound to pay by virtue of his endorsement, and the agreement and understanding, by virtue of which it was made.”
The objection taken at the bar, that the answer, is not evidence of a fact, which upon looking at the face of the answer does not appear to be within the knowledge of the party, cannot affect this case, because the plaintiffs in a subsequent part of their answer, assert that Jones, when called on by them for payment, “ admitted to them that he was liable to pay them the said sum of money, and that he endorsed the said bill upon that understanding and belief.”
Upon such testimony, the jury if they gave credit to it, would certainly be warranted in finding for the plaintiffs; and the court was wrong, we think, in expressing a contrary opinion.
It is said however, that this opinion of the court was not in the form of an instruction to the jury, but appears in the *341record, as one of the reasons, for refusing the motion of the plaintiffs.
It is the province of the court, whenever called on by-plaintiff or defendant, to inform the jury, what are the principles of law applicable to the case under trial, which should control and regulate their verdict. When the law is declared by the court, the jury are expected to govern themselves by it, and the counsel will not be permitted to claim their verdict, upon any principles at variance with the positions advanced by the court. If the court be wrong the remedy is by appeal, and a reversal of the erroneous opinion. The law of this case, as declared by the court below, concluded the plaintiffs’ counsel, from asking a verdict at the hands of the jury, and such a verdict could not be found, but by totally disregarding the law, as declared by the court. The injury to the plaintiff in this case, is not lessened by the particular form, or technical designation of the opinion. The exception is taken to the “ instruction ” of the court, and we cannot but consider, any decision, or declaration by the court upon the law of the case, made in the progress of the cause, and by which the jury are influenced, and the counsel controlled, as coming within the scope and meaning of the term.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.