
    BECKWITH ADM’R OF SMITH vs. BOYCE.
    When ajudgment is rendered for a greater amount of damages (hah that laid in the declaration, it is erior; and the judgment should be reversed.
    ERROR TO ST. LOUIS CIRCUIT COURT.
    Bogy for plaintiff.
    1. The judgment below is erroneous because it is for a greater sum than is laid in plaintiffs declaration. 2 Blackford 459, Johnson vs. Hawkins; 3 Blackford 133, Phillips vs. Nichols ; U. S. Digest, vol. 2 ; p. 665 ; 2 Howard’s Mo. Rep. 686, Potter vs. Prescott.
    . 2. Where ajudgment in an action of assumpsit is for a greater sum than the damages laid in the declaration it is error. 1 Mo. Rep. 615, Johnson vs. Robertson; Carr §e. Vs. Edwards, 1 Mo. R. 137¡; Maupin vs. Triplett, 5 Mo, R. 422.
    Pork for defendant.
    1. The only mode of taking advantage of a merely defective or imperfect finding of a jury is by motion in arrest of judgment. Finney et al vs. The State 9 Mo. R. 636; Davidson vs. Peck 4 Mo. R. 445.
    2. This court is one whose jurisdiction in all civil actions between citizen and citizen is exclusively appellate for the correction of errors by the inferior courts of record, and therefore it will not reverse the judgment of the inferior court for any matter which is not distinctly brought before that court and passed on by it. State constitution; 4 Wend. 182 et seq, Houghton vs. Starr ; 2 Wend. 144 ; 2 Cowen 31; 17 John. 4C9 Henry vs. Cuyler.
    3. I assume the position that the mere circumstance that the verdict was for a greater sum than the damages laid in the declaration, ought not to he sufficient ground for reversing the judgment.
    4. The affidavit of the attorney o'f record filed in this court shows that it was by his mere oversight and default that the damages laid in the declaration were less than the amount found by the jury. And it is expressly enacted by the legislature that the judgment shall not be reversed for any default or negligence of the attorney, by which neither party shall have been prejudiced. Code of 1845, p. 827-8 sec. 7.
   Judge Napton

delivered the opinion of the court.

In this case the damages found by the jury, exceeded those laid in the declaration, and the judgment was in accordance with the verdict. There was no motion in arrest in the court below. In accordance with the previous decisions of this court, the judgment must be reversed. Carr vs. Edwards I Mo. R. 137.

Judge Birch

dissenting.

¡ am unable to perceive any thing in the reason of the rule relied up■on in this case;, to demand the reversal of the judgment. The verdict of the jury, in finding the issues for the plaintiff, and assessing his damages at 674 dollars, was the only means they had of saying that at the time of writing his declaration-, or bringing -his suit, the defendant had damaged the plaintiff five hundred dollars, and that during the six or sévén years intervening, between that period and the time the defendant permitted it to come to a final trial, (which it has not, even yet,) the interest justly accruing on the sum found to have been due should be added. This, I respectfully submit, though it be against all previous authority, should not be held to he a finding beyond the claims of the declaration. Its language, in this case, as is usual, is to the effect that the plaintiff hath sustained (not -will sustain) damages in a given sum, and that therefore he sues—and I can but deem it more natural as well as more just, that this averment, or “Count,” should be held, in opposition to mere legal fiction, to have relation to the time of suing, instead of the indefinite period of bringing the cause to final trial. There being, therefore, to my mind neither reason nor justice in compelling this plaintiff to go back to the court below and pay the costs of amending an originally good declaration, in order to commence his suit anew, I think we should at least properly modify the unnecessary and undiscriminating harshness of the rule¿ rather than contribute longer to perpetuate it.  