Writs of error will only lie where there has been a final judgment in the Court Dec. below. This in general only embraces those decisions and determinations of 1839. the Court which would be a bar to another action for the same cause. The arrest of judgment is in no case such a bar. The parties must wait till there. is a final judgment of some kind, when the whole proceedings below may be brought before the appellate Court by a writ of error.

The plaintiff in this case might have moved for judgment against himself in the District Court, which would have been ordered as a matter of course, (Fish versus Featherwax, 2 Johnson's cases, 215, and Horne vs. Barney, 19 Johnson's Reports, 247), or he might have retraced his steps and accommomodated his proceedings, to suit the views of the Court until he had obtained final judgment. After which, in either case, if he had felt himself aggrieved, he might have brought the whole matter here for review.

LAUNCELOT G. BELL VERSUS JAMES ACHISON & AL.

By appearance and pleading the defendant waives all defects in the process as well as in the service thereof.

On a plea of illegality of contract, and issue joined, the only question presented was whether the notes were given for the consideration stated, and not whether that consideration were legal or not. Had the plaintiff below wished to present the latter issue, they should in their replication have confessed and avoided the plea.

This Court cannot regulate its decisions on extrinsic evidence. The record is its only guide.

This was an action of debt brought by the defendants in error to recover Dec. the amount of certain notes of hand given by the plaintiff in error. The plea 1839. was that the contract which formed the consideration for the notes was illegal, being given in furtherance of a sale of public lands belonging to the U. States, The Court below charged the jury that if the plaintiff had improved the premises being public lands, such sale was legal. And to this the defendent excepts, and judgment being against him, brings his writ of error.

BY THE COURT

The two first points contained in the assignment of enrors are readily an swered. By appearance and pleading the defendant waives all defects in the process as well as in the service thereof. It is not therefore necessary for us to consider the sufficiency of such objections under different circumstances. The consideration of the third point has been attended with greater difficulty. This difficulty has arisen principally from the fact that the record does not present the case which either party has seemed to contemplate. On the one hand the legality of the sales of public lands is attempted to be proved. This can have no relevancy to the case before us. The parties went to trial

ec. in the court below upon an intirely different issue. The defendant pleaded 339. "illegality of contract," inasmuch as the notes were given in furtherance of a sale of public lands belonging to the United States, &c. upon which issue was joined. The only question presented to the jury by this state of pleadings was whether the notes were given for the consideration stated? and not whether that consideration were legal or not. Had the plaintiffs below wished to present this latter issue, they should in their replication have confessed and avoided the plea of the defendant.

But on the other hand the counsel for the plaintiff in error seems equally to have overlooked the actual state of the record. His argument seems to suppose that the actual question presented to the jury on the trial in the District Court was whether the traffic in public lands was or was not legal. We find nothing in the record to warrant such a conclusion. A distant inference of that kind may be drawn from the charge of the court: but this inference is not sufficiently irresistible to authorise a conclusion by this court.

What is there upon the record to show that the verdict of the jury was predicated upon this charge? What evidence do we find there to prove that this charge was not a mere gratuitous dictum, a random observation, or speculative opinion, wholly irrelevant to the real question then about to be submitted to the jury. If this were the case it would now be altogether improper to disturb the judgment on account of that charge even although it were ever so erroneous.

But from various circumstances we are led to believe that the real question intended by both parties to be presented to the court and jury on the trial was whether or not the sale of public lands was illegal. If this had been the case the charge of the court was pertinent to the question. We think also that it

was correct.

But we cannot regulate our decisions here upon extrinsic evidence. The Record is our only guide. According to that it would seem that the only inquiry was, whether the notes were given for the sale of public lands, as set forth in the plea, and denied by the replication. By rendering a verdict for the plaintiffs below, the legitimate inference is, that they found the notes were not given for the alleged consideration. The charge of the Court, therefore, was irrelevant to the question submitted to the jnry, and could have had no influence upon the verdict. It would, consequently, furnish no ground for a reversal of the judgment below.

Had the Court below instructed the jury to render a verdict for the plaintiff, in case they found that the plaintiff, Pierson, had improved the premises, &c. or had it, when properly requested, refused to instruct the jury that the circumstance of the land having been improved was wholly irrelevant under the existing state of the pleadings, and that the only question for them to try was as to the truth of the defendant's plea--in either case it would have been error. Nothing of this kind, however, appears upon the Record. We are, therefore, of the opinion that the judgment in this case be affirmed.

Judgment affirmed accordingly.