error, but the actual finding of the jury was changed by the direction of the Dec. Court. We are, therefore, of opinion that the decision of the Court below be 1839. sustained. Judgment affirmed.

SAMUEL BRASELTON VERSUS WARREN L. JENKINS.

This Court has no power to examine into errors in fact in the court below not appearing on record.

An erroneous decision of the Court below on an application for a new trial may be brought here for review and correction.

BY THE COURT.

The first and principal question to be decided in this case is, whether we can, Dec. on writ of error, examine into any errors in fact, in the Court below, which do 1839. not appear upon the Record. The cases cited show, that the Supreme Court of the State of New York correct errors of this nature. Those cases, however, also show that this power results from the broad extent of jurisdiction, conferred upon the Court by Statute. The practice in England seems, in this respect, similar to that in New York, and for a like reason.

Our powers, in this particular, seem rather more narrow and limited. The Statute seems to confine our remedial control, over the District Courts, by Writs of Error to matters of law.-(Laws of 1836, p. 23.)

But the principal reason why errors in fact cannot be corrected in this Court, is, that we have not the power to try any issue that might be joined thereon. The Supreme Court of the State of New York can issue a Venire to try questions of fact of this nature, which can only be tried by a jury.—(Arnold vs. Sanford, 14 Johnson's Reports 422.) This seems one of the chief arguments relied upon, in that case, for deciding that errors in fact might be corrected in that Court. It would seem, from the English books, that error in fact in an inferior Court cannot be corrected in the House of Lords, or in the Exchequer Chamber, because, in neither of those Courts, can there be a Trial by Jury. Such is the case with us. The Act of Congress organizing this Territory (Section 9) declares, that, in no case removed here from the District Court, shall a trial by jury take place in this Court. And the law makes no provision for sending an issue down for trial to the District Court. Upon the principles acted on by the Courts of other countries, therefore, it would seem impossible for us to correct the error in fact, complained of in this case. That cases of this nature may arise, involving the greatest degree of hardship and injustice, and which will be altogether remediless in a Court of Law, may readily be imagined. But the remedy must be applied by the wisdom of the Legislature, rather than by the discretion of the Court.

But it is said that the pleadings in this case are such as to dispense with the

Dec. necessity of a trial by jury. That the plea of the Defendant in Error is tanta1839. mount to a Demurrer, and confesses every error in fact which is well assigned.

This may all be true, but still, if, as a general rule, we are not authorized to take cognizance of, and to correct errors in fact, we cannot found so important a branch of jurisdiction upon a particular, and perhaps accidental, state of pleading.

Besides, by the authorities on this subject it seems to be settled that the plea of the Defendant in Error in this case, only confesses those errors in fact, WHICH ARE WELL ASSIGNED. If we cannot entertain questions of that nature, can any errors in fact ever be WELL ASSIGNED?

Another error assigned is, the refusal of the Court below to grant a new trial. There is no doubt but that an erroneous decision of the Court below, on an application for a new trial, may be brought up here for review and correction, for such a power appears to be conferred by Statute.--(Laws of 1836, p. 23.) But as this is a question principally addressed to the discretion of the Court below, a strong case must be presented to authorize the interposition of this Court. The present case does not seem to us one of that nature. The grounds upon which the application for a new trial was founded, are, first, That the damages were excessive: second, That the Defendant was misled by an observation of the Attorney for the Plaintiff below, by reason of which he was absent from the trial. There is nothing before us from which we can infer either that the damages were excessive, or that the Defendant below had any sufficient reason for neglecting to prepare for the trial. We, therefore, think that the Judge of the District Court, in over-ruling the motion for a new trial, did not transgress the limits of a sound legal discretion.-The Judgment of the Court below is, therefore, affirmed.

EDWARD POWELL VERSUS THE UNITED STATES.

Omission of an arraignment will be a sufficient ground for reversing a judgment.

BY THE COURT.

The first error assigned in this case is, that there was no plea pleaded by the defendant below, previous to the trial. It is not absolutely necessary in all cases, Dec. that the defendant should actually plead. He will be presumed to plead 1839. not guilty, even if he should stand mute, especially in capital cases. But it is

a general rule that the total want or omission of an arraignment will be a sufficient ground for reversing a judgment-(1 Chitty's Criminal Law, p. 418.) Had the record stated that the defendant had regularly appeared and pleaded, an arraignment would have been implied by that act. As, however, there is no evidence, from the record, that the defendant pleaded-that he was arraigned-or that he even personally appeared, the judgment in this case must be reversed. There are other essential errors, but the one already examined being sufficient, the others need not be considered.

Judgment reversed.

HARRELL VERSUS STRINGFIELD.

The technical phraseology of the verdict of a jury is not essential. And may be changed by the Court.

The statute does not require the jury to assess damages in replevin, except when the plaintiff fails to prosecute his suit.

This was an Action of Replevin, brought by the Defendant in Error vs. the Plaintiff in Error, and Verdict was for the Plaintiff in Replevin,--upon which the Defendant in Replevin moved for a new trial, on the ground that verdict was contrary to evidence.

For the Plaintiff in Error RORER and STARR.

For the Defendant in Error GRIMES cited Cornwall vs. Gould, 4 Pick. R. 446 -White vs. Snell, 9 Pick. R. 16--Grant on New Trials, 85-Usher vs. Dansey, 4 M. & S. 94--Rex vs. Hayes, 2 Str. 842-Clarke vs. Lamb, 8 Pick. R. 5128 Pick. R. 415.

BY THE COURT.

The errors relied upon for reversing the Judgment in this case, are, first, That the Verdict of the Jury does not dispose of the issue; and, second, That the Verdict is not found in accordance with the Statute, which requires the Jury to assess the damages.

The action was originally commenced before a Justice of the Peace. In his transcript, sent up to the District Court, on appeal, he states that issue was joined, without declaring what that issue was. Upon that issue the verdict of the jury in the District Court was, "We, the Jurors, find a verdict for the defendant, (Stringfield) and award to him legal damages."

This is, certainly, a very informal verdict; but the case comes nearly within the principle decided at the present Term, in the case of Gordon and Washburn vs. Higley, except that the verdict was not rectified in form in the Court below. Whatever might have been the issue, there can be no doubt as to the intention of the jury, It would have been proper for the District Court to have changed the phraseology of the verdict, so as to have given it a correct technical form-but we do not deem it essential. As to the second point, the Counsel for the plaintiff seems to have mistaken the Statute. The assessment of damages referred to is only directed in case the plaintiff fails to prosecute his suit with effect, and without delay. This does not appear to have been the case in the present instance.

But the verdict of the jury, in "awarding legal damages," is doubtless very uncertain: this would have been fatal had it not been cured by subsequent action in the Court below. Something was said, in the argument, of a Remittitur having been entered there. This does not appear upon the Record. But, in entering up the Judgment, no notice is taken of those "damages." The Judgment is, that the defendant go thence without day, and recover of the plaintiff eighty-eight dollars forty-five cents, for his costs and charges, &c. These costs and charges are incidental to the finding of the jury "for the defendant" -so that the residue of the verdict was either regarded as surplusage in the Court below, or a Remittitur must have been there entered by the defendant. In either case no injury has resulted to the plaintiff. It will not, therefore, form a sufficient basis for the reversal of the judgment.

We take this opportunity of recommending to the Members of the Bar greater care in relation to the entries in the Records of the District Courts. While we are determined not to disturb proceedings, in those Courts, for technical ex

Dec.

1839.

Dec. rors, which can work no possible harm, we shall not hesitate to do so whenever 1839. there are plausible grounds for supposing that such errors may create an injury to the party asking a reversal.

The Judgment of the Court below is affirmed.

WM. RIGGLESWORTH VERSUS ISAAC REED.

BY THE COURT.

Dec. The proceedings in this case have been so irregular, and the record is so im1839 perfect, that the judgment cannot be allowed to stand. The defects pointed

out under the fifth and sixth head, in the assignment of errors, are fatal. The name of the garnishee against whom judgment was rendered was left blank in that judgment. The amount of the costs and damages was also left blank. For these and many other errors, we think that the judgment below should be reversed.

Judgment reversed.

Dec.

LESTER WALLIS, PLF. IN ERROR, VERSUS WILLIAM SPARKS.

Writ of error will only lie where there has been a final judgment in the Court

below.

In this case the verdict was for the Defendant in errror in the court below, 1839. and judgment thereon was never rendered, having been arrested, on the motion of plaintiff in error. In this stage of the proceedings the plaintiff Wallis, brings his writ of error to the Supreme Court. And now the defendant moves to dismiss the case from the docket, on the ground that a writ of error does not lie till after final judgment.

BY THE COURT.

The motion in this case must be sustained. Strictly speaking perhaps the motion should have been to quash the writ of error, but the difference is not very material.