
    Williams against Vanderveer.
    NEWYORK,
    May, 1813.
    Where a writ ef error was brought on a judgment in a court of common pleas, to this court,and the judgment "below reversed, and a venire de novo awarded, returnable in this court,and the cause was tried on the record remaining in this court, and averdictfound for the plaintiff ? it was held that the plaintiff could not set up a defect in form in the record, on a motion in arrest of judgment.
    Where the placitum in the record stated that the court washeld at the village of Otsego, without saying at the court-house; it was held that as the court-house had been pulled down, and not rebuilt at the time the court r was held, the placitum was sufScient; and at any rate, it was matter of form only, and cured after verdict by the statute of jeofails.
    
    THIS was an action of assumpsit. The cause was tried at ■the Otsego circuit, the 11th of September, 1812, before Mr. Justice Thompson, when a verdict was found for the plaintiff.
    A motion was now made in arrest of judgment, and also for a new trial, on the ground that the verdict was against law and evidence.
    The motion for a new trial was refused, the court not thinking it a case which justified their interference, especially after a second verdict.
    On the motion in arrest of judgment, it appeared that the cause was originally commenced in the Otsego court of common pleas, and brought to this court by writ of error, when the judgment below was reversed. A venire de novo was awarded, returnable in this court, and the cause was accordingly tried at the last circuit, in Otsego, on the record remaining in this court, the placitum to which was as follows: “ Pleas in the court of the common pleas, held at the village of Otsego, in and for the county of Otsego,” Szc.
    
    
      N. Williams, for the defendant,
    objected that the place at which the court was held was not properly stated. That as the statute requires the court to be held at the court-house, See. it ought to have been so mentioned in the placitum. There can be no intendment in favour of the court below. Its proceedings must be shown to "be regular, and that it has jurisdiction.
    
    
      Foot, contra, contended that the ground of the motion in arrest was a mere matter of form, and not of substance, and was cured after the verdict by the statute. The record having been brought up by the writ of error, and the judgment below once reversed for a defect, the party cannot now, after a second verdict, allege another defect in that record, in order to arrest the judgment. But he contended that the placitum was sufficient under the statute.
    
      
      
         Laws, vol. 1. p. 397.
    
    
      
       2 Wils. 382, 383. 6 Mod. 224. 9 Mod. 95. 5 Cranch, 85.
    
   Per Curiam.

This cause came up on a writ of error, from the Otsego common pleas, and this court reversed the judgment below and awarded a venire denovo, returnable in this court, and.upon the record remaining in this court the cause was tried at the Otsego drcuit. The defendant cannot now be allowed to sct up the de'~ fect of form in the placilurn to the record which came fromthe court below. It was not assigned for error upon the writ of error, and the party is now too k~te, after a new trial awarded ai~d had upon that record, to assign a second error in the record, unless it be, at least, an error in substance. The only error now alleged is a defect of form in the placitum, in which the court below is stated to have been held at the village of Otsego, omitting to say at the court-house in the same. Now the court know, from the public acts, that at the date of the placitum, there was no courthouse, in esse, in Otsego county, for the old one was pulled down and sold, and the new one erecting, but not finished. The courts of common pleas, during the interval between the loss of the old and the erection of the new court-house, were ambulatory, so far as that the judges when they met to hold court were authorized to sit in any convenient place fixed by law, and we know the place fixed by law was . in the village of Otsego„ By taking the trouble to examine the several statutes relative to that subject, it will appeal* that the placitum for that court of common pleas, and at that term, was sufficient, and the court was not, and could not be, held at the court-house. But the objection itself, independent of any such consideration, is but matter of form, and cured after verdict by the statute of amendments and jeofails, for a trial was awarded and had in this court upon this very record, with such a placitum as a part of it, After a trial here under our own jurisdiction, it would be intolerable to listen to such an objection.

Motion in arrest of judgment denied.  