ALBANY, is put at issue, and the party makes default at the hearing.(z) They have been cited on this occasion; and are either defaults in arguing demurrers, or at a hearing in the Court of Chancery when the cause is called upon the calen- Knickerbackdar. Colden V. er. 712, 713, per Ld. Redesdale. per Erskine. Lds. (a) 3 John. Rep. 42. (b) Carth. (c) 10 John. That it is fatal on error, if it appear by the record that the (z) Chamcause of action arose after the commencement of the suit, ley V. Ld. Dunsany and the Court are referred to Cheetham v. Lewis, (a) Venables others, v. Daffe, (b) the note to Barker et ux. v. Thorold, (1 Saund. 2 Sch. & Lef. 40,) and Warring v. Yates.(c) THE CHANCELLOR. All the proceedings in the suit in id. 719, 720, the Supreme Court being returned, it appears that judg- Carleton and ment was entered against the defendant by default, and that the proceedings passed through the offices of the Supreme Court, silently, in respect to the Judges, who were never 113. asked to correct any irregularity, or to afford any relief to 119. the party, who now assigns errors in those proceedings. The case The writ of certiorari issued, in order to bring into this stated. Court all the proceedings not stated in the record, required any affidavits used on a motion to set aside the default, and any rules or orders actually made by the Supreme Court thereon; but no such affidavit, rule, or order, is returned. The plaintiff in error, having made no application whatever to the Supreme Court, for any redress, now asks this Court to reverse the judgment thus entered against him. The Judges of that Court not having, in fact, decided any question in the cause, have not given reasons upon this occasion. If a defendant, making no defence in the Supreme Court, suffering a judgment to be entered against him by default, and making no application to that Court for any redress, might come before this Court and ask the same redress which that Court might have afforded, this Court would become, in effect, a Court of original jurisdiction, and would be employed in deciding questions which the Supreme Court had never determined. Such a course of proceeding would be inconsistent with the constitution, and pregnant with great mischiefs. The jurisdiction of this Court is merely appel Jurisdiction ALBANY, late. Colden . er. late. It is a jurisdiction to re-examine and re-judge; to correct erroneous decisions actually made; to affirm, reverse, or alter determinations made by Judges, who may give, and Knickerback- are bound to give reasons for their determinations. It is not a jurisdiction to determine, in the first instance, causes or merely appel- questions which have not been submitted to the decision of other Courts. This separation of jurisdictions it is our duty to maintain. He who comes here to complain of errors must show not merely the formal proceedings which in a general course of practice may take place, without the knowledge of the Judges, and without any direction from the Court, in the particular cause, but he must also show some judgment or some decision, upon a question actually presented to the Judges for their determination. Writ of error upon a judg fault dismiss ed. In this case, the plaintiff in error, not having submitted to ment by de- the Supreme Court any of the objections which he now urges here, and not having made the least effort to obtain the decision of that Court, upon any one of those objections, he is not entitled to be heard in this Court. The proper disposition of such a case is, I conceive, not to affirm or reverse the proceedings, but to dismiss the writ of error. The questions presented. BowKER, BowNE, BRONSON, CRAMER, DUDLEY, EARLL, GREENLY, HUNTER, PORTER, THORN and WHEELER, Senators, concurred. SUDAM, Senator. This cause comes before the Court on a writ of error to the Supreme Court, and all the supposed errors assigned by the plaintiff, (except the 5th,) are those existing in the interlocutory proceedings in the Court below, and do not appear in the record. These proceedings (the capias, declaration, &c.) have been brought into this Court, by a writ of certiorari, and three questions are presented for its consideration. 1. Whether this Court on a writ of error will take cognizance of mere irregularities in the Court below, which might be corrected there. 2. Whether this Court will sustain a writ of error to the Supreme Court, when the judgment in that Court has been permitted to be taken by default, the error assigned appearing on the face of the record. ALBANY, Colden V. 3. When the assessment of damages by a Clerk of the Supreme Court, on a declaration containing a count on a Knickerbackpromissory note, and the money counts, is authorized by our statute. I am satisfied that this Court ought not to take notice of mere formal defects in the proceedings of the Supreme Court. (Cheetham v. Tillotson, 4 John. Rep. 499.) It is for that Court to redress injuries which may result from a violation of its rules or practice, and it could not be tolerated that judgments in that Court should be reversed here, for mere mistakes in form, and in no wise affecting the merits of the controversy. er. This court will not notice formal mere from rules of practice in the supreme court. Whether error lies upon a 2. The second question-whether the Court will sustain a writ of error in the Supreme Court, on a judgment by de- judgment by fault in that Court, deserves to be seriously considered. default. liminary ob This point is presented by the counsel for the defendant Is made a prein error, as a preliminary objection, and they contend that jection. the writ of error ought to be quashed. support it. In support of their position the counsel cited the case of Cases cited to Gelston & Schenk v. Hoyt, (13 John. 561.) In that cause the plaintiff below had demurred to two of the special pleas put in by the defendants, who joined in the demurrer, but declined arguing the demurrer before the Supreme Court, when the cause was called on, and permitted a judgment on the demurrer by default. That case differs essentially from the one now under consideration. The party had made his defence. He was in a situation to have taken the judgment of the Supreme Court upon the very question which he attempted to discuss in this Court, and he was very properly told it was an established rule, that a point waived by him in the Court below could not be open to discussion in this Court. He had himself abandoned that ground, and by this means misled his adversary, and deprived him of rights which the Supreme Court could have afforded him, had the demurrer been overruled. It was a voluntary abandonment of a point on which it was in his power to have taken the judgment of the Supreme Court, and if not satisfied, then to call ALBANY, Colden V. er. for the opinion of this Court. So, also, in the case of Sands v. Hildreth, (12 John. Rep. 493.) There the cause had been regularly set down for a hearing on bill and answer, Knickerback and upon notice to the party, the appellant did not appear, but suffered a decree to pass against him by default. This Court dismissed the appeal, because he had voluntarily permitted a decree to pass against him, when he might have taken the judgment of the Chancellor on the merits of his cause. If he had taken his opinion, it might have been unnecessary to resort to this Court. Not having done this, he was presumed to have acquiesced in the justice of the judgment pronounced by the Chancellor, and this Court would not aid him in a course of litigation which he had once concluded to abandon. A party who, Preliminary questions of this kind are always addressed on hearing, or to the sound discretion of the Court, guided by principles notice, volun ment of the tarily with- which have heretofore, and ought in future to govern Courts from the delib- of appellate jurisdiction; and I fully subscribe to the docerate judg- trine, that a party who has placed his cause in a situation court, should to receive the deliberate judgment of the Supreme Court or not be heard Court of Chancery, and who, upon a hearing, on notice, on appeal or voluntarily withdraws himself from the deliberate judgment of the Court below, and permits his adversary to recover by his default, is, and ought to be precluded from agitating the same points in this Court. error. But this is not the plaintiff's case. But the case of the plaintiff in error is not within the rule laid down in the cases cited, nor is it within that established in the case of Henry v. Cuyler, (17 John. 469.) The plaintiff in error was prosecuted in the Supreme Court, and he did not appear to the writ. He permitted the plaintiff below to perfect his judgment, and he now says that there is error in that record. I cannot subscribe to the doctrine, that to enable a party to maintain his writ of error, (which is a writ of right,) it is necessary that he should appear and litigate the suit in the Court below. He may rest on the honesty and integrity of the plaintiff, and presume that he will not enter a judgment for a greater sum than is justly due. But he may find himself egregiously deceived. A judgment may have been entered against him for $10,000, when only ALBANY, Sept. 1823. Colden V. er. $100 was due. And shall it be said that, in such a case, he cannot take advantage of the errors of his adversary, to reverse an unjust recovery? This may be stating an extreme case, but a moment's reflection will suggest a variety Knickerbackof cases in which the greatest injustice might be effected, and the injured party without a remedy, unless his writ of error is secure to him. If he appears in the suit below, he then takes into his own hands the estimate of his rights. If he waives them, it is his own act, and he ought to be concluded. But if he trusts to the plaintiff, if he does not place any obstacles in his way to a speedy recovery, and he afterwards finds that the plaintiff himself has so conducted the suit, that in judgment of law his proceedings are erroneous, he is, in my opinion, entitled to the judgment of this Court upon the record. Upon the face of all our records the judgment recorded is that of the Court: and I can see no constitutional objection to sustaining this writ of error. A judgment by default is as much the judgment of the Court, as that on a verdict, or after argument on a case made. The words of the constitution are, (Art, 5, s. 1,) " And when a writ of error shall he brought on a judgment of the Supreme Court, the justices of that Court shall assign the reasons for their judgment." A judgment by default is as much a judgment of rendered on a the court as if verdict. And the su preme court assign Where is the difficulty in the Justices of the Supreme Court assigning the reasons of their judgment? In the case may of Gelston v. Hoyt, before cited, Chief Justice Spencer as- reasons for it. signs, as the reason for the judgment, that "when the cause was called, (meaning the issue joined on the demurrer,) the defendant's counsel appeared and declined to argue. Whereupon judgment was given for the plaintiff, on the defendant's counsel declining the argument." Upon these reasons, assigned by the Chief Justice, it appeared the plaintiffs in error had waived, in the Court below, that part of their defence which was embraced by the demurrer, and this Court justly held them to it. In the case now before the Court, on the 5th error assigned, (which is the only one appearing on the face of the record) there could be no difficulty in assigning the reason why |