The first point made by the plaintiff is, that the action should have been case, and not trespass. If the object of this point is to support the first error assigned, to wit, that the declaration is insufficient, It certainly cannot be sustained.
The declaration is in the ordinary form of a declaration in trespass, and I can see no objection to it, either in form or substance. But I presume this point was intended to apply to the case made by the special plea of the defendant in the court below. I am satisfied an action on the case cannot be maintained against an infant under such circumstances. If the infant was liable at all, trespass was the proper form of action. An action on the case necessarily supposes the defendant to have a right to the possession of the property under the contract of hiring, at the time the injury is committed. Independent of the contract of hiring, the defendant would have no right to the possession, and trespass would be the proper remedy. If the plaintiff declares in case, he affirms the contract of hiring, and the plea of infancy is a good defence to such an action; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his plea of infancy. The cases of Jennings v. Randall, (8 Term Rep. 335,) and Green v. Greenbank, (4 Eng. Com. Law Rep. 375, 2 Marsh. Rep. 485,) were cases of that description.
The contract of an infant is not void, but is voidable at the election of the infant. If a horse is let to him to go a journey, there is an implied promise that he will make use of ordinary care and diligence to protect the animal from injury, and return him at the time agreed upon. A bare neglect to do either, would not subject him or an adult to an action of trespass, the contract remaining in full force. But if the infant does any wilful and positive act, which amounts to an election on his part to disaffirm the con*144tract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not protect him. The case of Vasse v. Smith, in the supreme court of the United States, (6 Cranch’s Rep. 226,) was decided upon this principle. The special plea in the court of common;pleas was defective in not averring the fact, which was afterwards inserted in the amended plea, that the injury complained of, occurred in the act of driving the mare through the unskilfulness and want of knowledge, discretion and judgment of the defendant. With that averment, I think the plea of infancy, with the contract of hiring, would have been a complete answer to the action. But without such averment, I think the court were bound to presume it was a wilful injury, which would amount to an election by the infant to dis-affirm the contract. I therefore am of opinion that the' judgment of the supreme court on the pleadings as they stood was correct.
I am also of opinion that the defendant in the court below, by electing to amend his pleadings, waived his right to ring a writ of error on the judgment of the supreme court, founded on the original pleadings. If the cause had been originally commenced in the supreme court, the former pleadings would not have been found in the record. .As the venire de nova was awarded in the supreme court, and these proceedings formed a part of the record of the court of common pleas, which was brought into the supreme court by writ of error, it was perhaps necessary that the original pleadings should remain upon the record. But the election of the defendant to waive them by amending his plea, also forms a part of the record; hnd he cannot now take advantage of any error in the judgment of the supreme court, founded on the original pleadings.
The only remaining question is, can the plaintiff in error take any advantage of the defective finding of the jury on the issues arising out of the amended pleadings. I understood the counsel of the plaintiff in error to admit, on the argument, that this question had never been brought before the *145supreme court, by a motion in arrest of judgment or otherwise.
There is a manifest difference to be observed between the proceedings on writs of error in this court and the "proceedings of the supreme court on writs of error to inferior tribunals. The supreme court are bound to correct all errors in the proceedings of inferior tribunals which are brought before them, whether they relate to decisions either actually or nominally made by the court below, or to matters out of the record, usually denominated errors in fact. But in the organization of this court, it was evidently the intention of the framers of the constitution, that it should be strictly an appellate court, for the re-examination and correction of erroneous decisions actually made by other tribunals, upon questions actually presented to them for their determination. The provisions in the constitution requiring the judges of the supreme court, on writs of error, to assign the reasons for their judgment, and excluding them from voting in favor of the affirmance or reversal of their judgments, are both founded upon the presumption that they have actually passed upon the question in the court below.
I had supposed that the opinion of the late Chancellor Sanford, in Colden v. Knickerbacker, (2 Cowen’s R. 31,) which was concurred in by the majority of this court, had put this question finally at rest here. But as the same question is constantly agitated, it may be advisable that the court should express an opinion upon that subject which cannot be misunderstood.
In Cheetham v. Tillotson, (5 Johns. R. 430,) a judgment by default was reversed for a defect in the declaration. I presume in that "case there had been no motion in arrest of judgment in the supreme court; but that question was not raised or passed upon by this court.
In Sands v. Hildreth, (12 Johns. R. 493,) this court decided, that no appeal lies from a decree of the court of chancery, pronounced on the default of the defendant at the hearing. And in Gelston v. Hoyt, (13 Johns. R. 361,) it was decided, that the plaintiff in error could not take advantage here of any erroneous decision of the supreme court on de*146murrer, where he had declined arguing the demurrer in that court In Henry v. Cuyler, (17 Johns. R. 469,) the plaintiff in error, having suffered the judgment to pass against him by default, at the argument of the demurrer in the supreme court, this court refused to hear the cause, although the same question had previously been decided in the supreme court, on argument, in another case; and although the cause was brought up to this court by consent of parties, for the purpose of reviewing that decision.
All these cases show the settled practice of this court, not to review a decision or judgment of the supreme court, or ■court of chancery, where the question has not been actually passed upon or distinctly presented to the court below. I am not aware of any case where the question has been raised, in which this court has decided differently.
There is another class of cases which are of an entirely different character, and in which the practice must, in some measure, be regulated by the sound discretion of this court. These are cases which the court below has passed upon, but in which this court is asked to reverse or modify the decision upon some new point not urged upon the consideration of the court upon the argument of the cause in the court below. These cases most frequently arise on appeal from the court of chancery. The litigated causes which come before that court are usually very complicated. The bill sometimes contains only the common prayer for general relief. It also frequently happens that a party is not entitled to the particular relief prayed for in his bill, or insisted on in argument, though he may be entitled to some different kind of relief, not urged or thought of by him, while the cause was pending in the court below. In such cases, this court will not reverse the decree of the chancellor, for the purpose of giving the appellant a remedy which he did not ask for there. (Per Ld. Eldon, in Chamley v. Lord Dunsany, 2 Sch. & Lef. 700.) In courts ' of law, the cases for consideration are more simple; and this court, in general, will not sustain an illegal judgment, merely because the plaintiff in error has neglected to urge every valid objection which might have been insisted on, by way of argument, in the court below. Thus, in Palmer v. Lorillard, *147(16 Johns. R. 343,) where, in an action of assumpsit, the facts found by the special verdict entitled the plaintiffs to a verdict in an action of trover, and the supreme court, without adverting to the form of action, gave judgment in their favor, this court reversed the judgment, although the plaintiffin error had neglected to urge that point upon the consideration of the supreme court. In that case, the late Chancellor Kent says: “ It does not come within the rule, that an objection, not taken in the court below, cannot be taken here. That rule was intended only to be applied to objections which the party may be deemed, by his silence, to have waived, and which, when waived, still leave the merits of the case to rest with the judgment. But if the foundation of the action has manifestly failed, we cannot, without shocking the common sense of justice, allow a recovery to stand.”
It is a general rule, that a defendant may allege in arrest of judgment any matter appearing on the record, which might be assigned for error after judgment. (12 Hen. 4, 24. Bro. Abr. tit. Judgment, pl. 48. 5 Com. Dig. 174, Pleader, s. 47.) So, the defendant may move in arrest of judgment, although he has not appeared to the action. (Collins v. Gibbs, 2 Burr. Rep. 899. Chantflower v. Priestley, Cro. Eliz. 914. 2 Roll. Abr. 716, c. 20. Lilly’s Prac. Reg. tit. Judgment, 121, a. Bighton v. Sawles, 1 Leon. R. 309.) And I am not aware of any possible case in which there can be an error in the record or proceedings of the supreme court, which would afford sufficient ground for reversing their decision here, in which the party may not, if he applies in time, present the question directly to that court for their decision in the first instance. If he does so, and that court decide against him, it may then be proper for him to apply to this court to review that decision upon a writ of error. In the case before us, the alleged error in the finding of the jury appeared upon the face of the record. If it forms a sufficient ground for reversing the judgment, it would have been equally available by a motion in arrest. If the party had moved in arrest, and the supreme court had considered the objection well taken, that court would have awarded a venire de nova, to supply the defect, or have permitted the plaintiff *148to amend -the verdict in such a manner as to correspond with the actual finding of the jury.
‘ In conformity to the practice adopted by this court in Colden v. Knickerbacker, I think the writ of error in this cause should be dismissed with cost.s.
This being the unanimous opinion of the court, the writ of error was dismissed, with costs to be paid by the plaintiff in error.