¶1The opinion of the Court was by
¶2On the question of misnomer, we perceive no error in the instructions of the Judge. Where an issue of fact is joined and tried, the authorities very clearly establish the doctrine, that the judgment is to be peremptory. The jury therefore should have assessed the damages. Eichorn v. Le’maitre, 2 Wilson, 367. The judge should not have instructed them, that they had *324nothing to do with the question of damages; but as the counsel for the defendant also contended for this, it does not furnish ground of exception on his part. This omission does not, in our judgment, require that the verdict should be set aside. The damages may either be assessed by the court, as upon default, or where a plea is adjudged bad upon demurrer, or that question may be put to another jury. The reason why a new trial was granted, and a writ of inquiry refused, in the case cited from Wilson, where a similar omission occurred, was that otherwise the defendant would be deprived of his remedy by attaint, if the damages were outrageous. As this is a process not known to our law, there is no reason for sending the question of misnomer, to another jury.
¶3Exceptions overruled.