
    SUSANNAH LINDSAY vs. FRANCIS HERD.
    tlpbn an appeal from a judgment of a justice of the peace, for a sum excefeding tweir-* ty dollars, it is error, 'for which the supreme court will reverse tire judgment of the circuit court, if either.party proceed to trial there, without-making up an issue.
    Tins suit was originally brought by the defendant in error, before a justice of the peace, and a judgment rendered in his favor, for more than twenty dollars. From that judgment, the plaintiff took an appeal to the Superior Court of Amite county. In that court, “there being no formal issue made up by and between the parties,” a jury was sworn, “well and truly to try the appeal aforesaid,” who found a verdict for the present defendant, for twenty-four dollars, and costs; upon which verdict, judgment Was rendered. To reverse that judgment, the plaintiff brought this writ' •of error, and assigned the following reasons for the reversal.
    
    1. The declaration is insufficient to maintain the action.
    
    
      2. There was no issue between the parties made up in said cause at or before the trial.
    3. The general error.
    The defendant pleaded substantially in nullo esl erratum.
    
    
      Rankin for plaintiff.
    
    The second error assigned must be fatal. The judgment is for more than twenty dollars, and no issue was lnade up at or before the trial. The act of 1814 provides, that “in gases where the sum claimed exceeds twenty dollars, the said (superior) ■ court shall try such appeal de novo, as any. other cause in said court is tried at the first term, on an issue to he made-up at or before the trial.” Dig. .317, ,S. ,3.
    
      McGee for defendant.
    
    -It does not appear from the record, .that there was no issue made up, but that there was no formal issue.. The statute does not require that the issue should be technically formal. But if. there was not such an issue made up as the statute requires; it is not an error, of whichithe plaintiff can avail herself. It washer own fault, that she did not plead to the action in the superior court,.and she cannot take advantage of her own wrong..
    
      Marikin in reply.
    
    The record ought to shew, not only that there was an issue, but also, what the issue was, that the court may be able to judge of its materiality. The error was the defendant’s, in putting the cause to the jury, before it was prepared for trial.
   Curia. — The judgment must be reversed.  