Gordon & Washburn v. Higley.

taken. The question here arises, whether, if the beneficial plaintiff chooses to bring his action in the name of the payee, the maker cannot avail himself of any defence which would have been valid, had the payee sued for his own benefit. Where a chose in action is not negotiable it may still be transferred, and a suit may be brought for the use of the beneficial holder, in the name of the original payee.,

But in that case the defendant may resort to any de*13 fence which would have been *available had there

been no transfer. Chitty on Bills, 90. The principle in the present case is nearly the same. The only direct authority which we have been able to find on the subject is that of Hartwell v. McBeth, 1 Harrington's Rep. 363. In that case the Superior Court of the state of Delaware decided that, on a promisory note endorsed in blank, suit might be brought in the name of the payee, for the use of the beneficial holder, but that in such a case, want of consideration would be a valid defence. We see no reason for a contrary course, sufficient to induce us to decide in opposition to this authority. We are, therefore, of opinion that the Judge of the District Court erred in rejecting the evidence offered, as stated in the bill of exceptions, and that the judgment below should be reversed. Judgment reversed, accordingly.

GORDON & WASHBURN v. HIGLEY.

Error to Muscatine.

The District Court may direct such a change in the verdict of the jury as to make it correspond to the usual forms, where such change does not alter the evident meaning of such verdict.

Gordon & Washburn v. Higley.

This may be done without the consent of the jury, and is, therefore, proper after their separation (ƒ).

This action was commenced in a Justice's Court, and brought from thence into the District Court of Muscatine county by appeal. The transcript of the justice showed that the action was assumpsit, and that the parties went into trial without setting out any formal issue, and there is no evidence of an issue having been made up in the District Court.

On the trial in the District Court, the jury returned their verdict as follows: "Verdict for the plaintiff, forty-four dollars and seventy-nine cents." A motion in arrest of judg ment was thereupon made and overruled. After which, the Court directed the clerk to change the phraseology of the verdict, so as to make it correspond to the usual form in an action of assumpsit. This was done after the separation of the jury. This was the principal error relied

upon.

*RORER, STARR & MITCHELL, for plaintiff in error, cited 2 Wheat. 225, Patterson v. United States.

*14

GRIMES, for deft. in error, cited 2 Strange, 1197, 1 Wils. 33; 3 Term. Rep. 749; 2d Doug. White v. Snell, 9 Pick. Rep. 16; Usher v. Dansey, 4 M. & S. 94;

739; 4 Pick. Rep. 446; Grant on new trials, 85; Rex v. Hays, 2 Strange,

842; Clark v. Lamb, 6 Pick. 512, and 8 Pick. 415.

BY THE COURT, MASON, CHIEF JUSTICE.-The only question presented in this case is, whether the Court below was right in directing the alteration of the verdict. It is contended by the counsel for the plaintiff in error, first, that the record does not show the nature of the original action,

(f) Rev. §§ 3084, 3085; Cassell v. Western Stage Co. 12 Iowa, 47; Stewart v. Campbell, 7 Iowa, 538; McGregor v. Arnold, 2 Iowa, 30; Fromme . Jones, 13 Iowa, 474; Hamilton v. Barton, 20 Iowa, 505; Morrison v. Overton, ib. 465; State v. Turner, 19 Iowa, 144.

Gordon & Washburn v. Higley.

so that the District Court had no legitimate guide in assimilating the verdict to any of the approved technical forms, and, in the next place, that, though the District Court has authority to correct mere clerical errors in entering the verdict of the jury, it has none to change that verdict itself, even in matter of form.

In the return of the justice, this action is styled an action of assumpsit. The proceedings in the Justice's Court are not fully set out in the transcript. Enough, however, appears there to prevent all doubt as to the nature of the action. Any formal defect, in this particular, should have been remedied (if at all) in the District Court. The statute in relation to appeals declares, "that upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try, and determine the same anew, without regarding any error, defect, or other imperfection in the proceedings of the justice. Laws of 1837-8, p. 176. This Court cannot countenance objections founded on defects which might have been corrected in the Court below, and of which, even without such correction, no advantage could there have been taken. We must, therefore, regard this case as though it had been an action of assumpsit, regularly brought and conducted.

We think, also, that the Court below was right in directing the alteration of the verdict. No form of expression could have more explicitly revealed the intention of the jury than that by them adopted. We are not now called upon to decide whether any precise form of words is necessary in a case like this; but, at all events, we think it perfectly proper for the District Court to direct such a

change in the language of the jury as to make their *15 verdict correspond to the usual forms, *whenever

such change cannot, by possibility, alter the evident meaning of their verdict. This may be done without the consent of the jury, or even should they positively object,

Samuel Brazelton v. Warren L. Jenkins.

and is, therefore, perfectly proper after their separation. In coming to this conclusion, we are not unsupported by authority. The Supreme Court of the state of New York, (7 Cow. 29) have decided that, in an action of replevin, where the jury merely found "for the plaintiff," it was proper for the Court to allow "six cents costs," and "six cents damages," to be added to the verdict by the clerk, "it being a mere matter of form, and incident to the finding of the jury." This was not the correction of a mere clerical error, but the actual finding of the jury was changed by the direction of the Court. We are, therefore, of opinion that the decision of the court below should be sustained.

Judgment affirmed.

SAMUEL BRAZELTON v. WARREN L. JENKINS.

Error to Henry.

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

An erroneous decision of the Court below on an applicetion for a new trial, may be brought here for review and correction, but for this purpose a strong case must be presented (g.)

This was an action of trespass vi et armis, brought by Jenkins against Brazelton, in the District Court of Henry county. The jury found the defendant guilty, and assessed the damages at one hundred and fifty dollars. The

(g) Rev. § 3112; Jourdan v. Reed, 1 Iowa, 135; Stewart v. Ewbank, 3 Iowa, 161; State v. Tomlinson, 11 Iowa, 401; Lodge v. Reznor, 13 Iowa, 600; McKay v. Thorington, 15 Iowa, 25; Denton v. Lewis, ib. 301; Jones v. Jones, 19 Iowa, 235; Gimble v. Ackley, 12 Iowa, 27; Freeland v. Muscatine, 9 Iowa, 461; see, also, new Const. art. 5, § 4.

Samuel Brazelton v. Warren L. Jenkins.

trial took place in Nov., 1838. In June, 1839, affidavits were taken, to be used in the Supreme Court, tending to show that the jury in making up their verdict in the case, had each marked down the amount of damages he wished to render, the sum of which, divided by twelve, was, in consequence of a unanimous previous pledge to that effect, taken as their verdict. This fact, however, was not presented to the District Court, as a basis for the motion for a new trial. The only reasons set forth in that mo*16 tion were: 1st. That the damages *were excessive,

and 2d. That the defendant below had been induced not to be personally present at the trial, by reason of an observation of the plaintiff's attorney. This last fact, however, was not sustained by affidavit, and it appears that the defendant's attorneys were present at the trial, and defended the suit.

BY THE COURT, MASON, CHIEF JUSTICE. The first and principal question to be decided in this case is, whether we can, on writ of error, examine into any errors in fact, in the Court below, which do 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