¶1By the Court.
¶2delivering the opinion.
¶3The question is, whether it was right in the Court, under the circumstances of this case, to interpose and render the judgment mine pro tunc t
¶4It seems that there was a question in the case, whether the judgment in sei. fa. had been obtained by fraud' of not; and that the main question involved in this question was, whether a guardian, or other person, ad litem, had ever been appointed or not in the sei. fa. ?
¶5And it seems that the parties agreed that the question of fraud or no fraud in the judgment, should be submitted to the Jury, just as it would have been if. the parties resisting the judgment had filed a bill alleging the fraud, and that bill had been before the Jury.
¶6Whether a judgment was procured by fraud, is a proper question for a Court of Equity. • And such a question, if presented to a Court of Equity, would be presented by a bill, and would be a question for a Jury.
¶7Johnson and wife, then, had the right, to present the -question, whether the jndgment in the scire facias was obtained by fraud or not to a Court of Equity; and by consequence, the right to have that question tried by a Jury. This was their right.
¶8They agreed with the tenants in possession, that this question should not.be presented to a Court of Equity, but should, in the course of the trial of the ejectment — a trial to which the question related, be presented to the Jury trying the ejectment, and should be tried by that Jury. Was this an illegal agreement, or an agreement not binding on the parties to it ?
¶9What law did it violate ? We know of none.
¶10*512Ifc is every day’s practice for a defendant to confess a judgment, reserving the right of appeal. It is, perhaps, quite as common for the parties to a case to agree that the case be. put on the appeal, without the intervention- of any verdict of a Petit Jury.
¶11The substance of. such agreements, is, that the case shall not be tried by a Petit Jury at all, but shall be tried by a Special Jury on appeal, as, if it had once been tried by a PetitJury.
¶12And what, in-, substance, is the other agreement ?’ It is,, that a- question shall he tried by a Special Jury, in a proceeding at Law, rather than by a special Jury in a proceeding in Equity. This is all.
¶13We cannot say, then, that we think that the agreement-' Was illegal. ;
¶14If legal,.was it not binding on the parties to it l Johnson, and. wife had acted on the agreement. . Instead of filing their hill, they had gone to trial relying on the stipulation, that they might have on the trial all that they could-have by a bill. ' - . -
¶15It is a general .rule, that agreements made- by parties in the progress of a case which have been acted on by either party, cannot he repudiated by the other ;■ at least, not unless, on setting aside the agreements, things resume their position in statu quo. . - -
¶16We know of nothing to take the present agreement out of this general rule.
¶17Wethink, therefore, that if the Court below had seen fit to let the tenants in the ejectment abandon the agreement with the lessors, the Court should at least have continued the case so as to give the lessors an opportunity to file a bill to set aside the judgment. The Court ought not, we think,, to have gone-further — to have gone the length of itself, conclusively deciding the very question the presentation of which would be the .sole, object of the hill. This the Court did when it made the judgment nunc fro tunc.
¶18In this judgment, therefore, the Court, as we think, erred.