Ripley v. Coolidge , 1 Minor 11 ( 1820 )

THE Chief Justice

delivered the opinion of the Court.

A preliminary question made in this case is,' Can the plaintiff in Error, after assignment and joinder, in Error, be permitted to avail himself of other Errors than those assigned ? The assignments and joinder make the question submitted to the consideration of the Court; a departure therefrom would be a departure from the matters put in judgment. The Court is not bound to enquire, nor will it enquire, of the Errors if the parties do not shew them. 1 Salk. 2, 68. Ld. Ray. 1005. 2 Bull, 275. 2 Bailey’s Index, 25. No. 1 & 22. 6 Term, 200.

As to the matters assigned as Error:

The plea is non assumpsit; the Similitor was omitted; the parties went to trial before the Jury, and thereby admitted that there was an issue ; the omission of the Similitor was a non-clerical misprision, and was amendable. The objection is clearly not available after verdict if at all. 1 Wash. 364. 2 Tidd. 835.

It is assigned as Error that one of the Jurors was a foreigner. The Record does not shew this. A challenge of a Juror should be made before he is sworn. If overruling the challenge is to be assigned as Error, the matter should be spread on the Record by Bill of Exceptions. Let the judgment be affirmed.