#### Allen Phillips, Pl'ff in Error, *vs.*Joseph Geesland, Def’t in Error, and the same *vs.*the same.

Whore a certiorari is brought, to tho judgment of a Justice’s Court the Circuit Court, in a case whore tho plaintiff in tho Court below recovered nominal damages, can only reverse or affirm the judgment. It has no power to render a judgment, “ as the very right of the matter appeared” before tho justice, by the evidence returned. In such a case, the Circuit Court has only the power to reverse or affirm tho judgment.

A judgment in the Circuit Court, of reversal, at one term, and a judgment at a subsequent term, awarding damages to the plaintiff, *58in the Justice’s Court, is erroneous. *That*Court could only render one judgment, reversing or affirming the judgment below.

Error in the late U. S. District Court for La Fayette, County.

In each of these cases, the plaintiff in this suit before the justice, obtained judgment for nominal damages, and on certiorari, brought to the District Court, the Judge reversed the judgment at one term, and at another and a subsequent one,' assessed the damages of the plaintiff, before the justice, at a sum far superior to that obtained before the Justice, and upon the evidence contained in the return made by the justice upon the principle that he had the authority to give such a judgment “as the very right of the matter appeared” from the return of the justice.

Both of the causes were submitted to this Court on the same argument, and stand upon the same footing in all respects. They came into Court by writ of error to the decision of the District Court.

*Knowlton,*for Plaintiff in Error.

Culver, for Defendant in Error.

*By the Court.*

Larkabee, J.

Phillips recovered judgment for nominal damages and costs before the justice, in replevin, for a quantity of lead ore. The cause was after wardsbrought to. the La Fayette District Court, where at September term, 1847, this judgment was reversed. Whereupon, the then plaintiffs in error moved that judgment be rendered as the “very right of the matter appeared.” This motion was continued for argument at the next term, when judgment was rendered for the plaintiff, for 137,00, the value of the ore as proved before the .justice, and costs of-suit.

*59The record shows two judgments in the District Court; pne of reversal at the first term, and one for damages at the second. This is clearly wrong;the Court undoubtedly had power to set aside the first judgment upon motion, but no power to render a new judgment while the first remained. The motion wás'for a new judgment and a different one; and the record shows the palpable inconsistency of two different and distinct *final*judgments in the same cause.

The Courts of New York, under a statute identical with ours, have uniformly confined their power to a simple reversal or affirmation of the judgments below; or in some cases, reversed in part only; but there, the jurisdiction of the justice does not extend to the action of repl'e-■vin; and it is contended that in this action, under our Statute, power must oi necessity be given to the District Court to render judgment as the ■‘Very right of the matter appears.'” That this would be a salutary power there can be no doubt; but, ppon a careful consideration of the Statute, we are convinced that no such power exists.— The judgment must be either an affirmance or reversal, or a reversal in part. The want of this power undoubtedly operates in many cases as a denial of justice; and in this case the judgment of the District Court was no doubt in accordance with the right of the matter. ’

The judgment of the District Court, for damages, must be reversed with the costs in this Court; and the judgment of the Court reversing the judgment of the justice must be affirmed.

Judgment affirmed.