Melville Fuller

“ The present alleged counter-claim is founded on the converse of the same cause of action as that counted on by the plaintiffs, and, inasmuch as the verdict and judgment determined that the defendant had been guilty of negligence, and that the plaintiffs had not, it may be assumed that the defendant suffered no injury through the action of the court in sustaining the exception to it. ”

“ The record of the 6th of October states the remittitur in proper form, and the jud ment for $4,656.65 thereupon; but, if we are to understand that the remittitur of that date was believed to be ineffective because it did not appear to have been made in open court, or with leave of court, it was entirely within the power of the circuit court, on the 8th of October, at the same term, and before any writ of error had been sued out, to correct the record according to the fact. ”

“ As the cross-demand was not set up ntil after the plaintiffs had been compelled by the defendant to make their items of loss more specific, and had thus reduced the amount claimed below the jurisdiction of this court, there is color for the contention on the part of the defendants in error that it was put forward for the purpose of giving this court jurisdiction. But, assuming this not to have been so, and that the writ of error should not be dismissed, we are of opinion that the motion to affirm must be sustained, under the circumstances, and it is so ordered. ”