3 Wend. 667 | Court for the Trial of Impeachments and Correction of Errors | 1829
The following opinions were delivered :
The first question presented for our consideration' in this case is, whether the supreme court had a right to amend the verdict of the jury by adding nominal damages thereto. From the opinion delivered by that court, it appears no special damage was proved or claimed at the trial. If the verdict as found by the jury can be considered a general verdict for the plaintiff in the court below on all the issues, nominal damages followed of course, and the judge at the circuit ought to have directed the verdict to be so entered. Being a defect in form merely, it would be the duty of the court to mould the verdict into legal form, so as to carry into effect the intention of the jury. If the verdict is good in substance, the court may amend any defect in form. (Diekl v. Evans, 1 Serg. & Rawle, 367.) Where there are some counts in a
But the plaintiff was not entitled to either damages or costs, unless all the issues were found in his favor; and if the court have added nominal damages which the finding of the jury did not warrant, the amendment was unauthorized, and their judgment should be reversed. It therefore becomes necessary to look into the verdict actually found by the jury, to. see whether it was such a finding as legally entitled the plaintiff to damages. .
In examining this question, 1 lay out of view what is stated in the postea as to the property of the plaintiff. It is evident those words were added to the verdict on the first issue by the plaintiff’s attorney, and without' authority. If the finding of the jury is in favor of the plaintiff generally, as it was in this case on the first issue, his attorney has a right to put into the postea every thing necessary in point of form to make the verdict complete: but he has no right to add any thing which was not in fact found by the jury, and which could not have been legally enquired into on that issue. If he does, it is mere surplusage, and cannot aid a defective finding on other issues. Under the issue of non cepit, the taking of the property is alone in question. (M’Farland v. Barker,1 Mass. R. 152.) And if the verdict on that issue is found for the defendant, he is not entitled to a return of the property. If the defendant means to contest the plaintiff’s right to the property, he must deny it. directly by a special plea or by a formal ti averse, as was done by the three last pleas in this casez
As this court have not the facts before them" on which the jury found their verdict, it is impossible to say they intended to find that the property belonged to the plaintiff. Even if the evidence was set forth in the record and was sufficient to entitle the plaintiff to a verdict on all the issues-, it is at least doubtful whether either the supreme court or this court could amend the verdict as to "a matter of fact, which is of vital importance in the cause. Although the supreme court thought there was sufficient to authorize the jury to find property in the plaintiff, it is evident from the opinion which has been sent up "here, that their attention was not directed to the fact that the jury had not" so found. It appears the judge at the circuit thought otherwise; and the defendant’s counsel neglected to give evidence on that point, in consequence of an . intimation from him that evidence on his part was unnecessary. The supreme court decided that the defendant was not precluded by the intimation of the judge from giving further evidence if his counsel considered it necessary. On this . point the decision of the supreme court was technically correct. But as the defendant lost the benefit of his further testimony because his counsel defered to the opinion of the cir-
The conclusionto which I have arrived is, that the verdict of the jury was defective in substance, and did not entitle the plaintiff to even nominal damages. I am therefore of opinion that the adding of damages by way of amendment was unauthorized, and that a venire de novo should have been awarded. (Hicks v. Keats, 6 Dow. & Ry. 68.) I think the judgment of the supreme court should be reversed with costs, and that a venire de novo should be awarded by that court. And as one of the parties has died since the joinder in error here, the judgment of this court should be entered nunc pro tunc as of the term or session of this court previous to his death. (Green v. Watson, 6 Wheaton, 260.)
This court are called upon for its judgment upon the validity of the verdict in this case, and whether the same be amendable; the supreme court upon the argument of the case there having directed an amendment to be made, allowing the words “ with six cents damages for the plaintiff” to be added to the verdict.
The plea of non cepit, in replevin, admits the property of the thing taken to be in the plaintiff in the action; and if the defendant means to dispute the question of property he must plead it specially 5 he will not be allowed to disprove the ownership under an issue which only denies the taking. (2 Phillips’ Ev. 126. 1 Chitty’s Pl. 159.) These authorities are unquestionable, and appear to me to establish clearly the materiality of the issue upon the second plea. In the case of Harrison v. McIntosh, (1 Johns. R. 384,) it was held that a “ plea of property in a stranger was a good plea either in abatement or in bar, and entitled the party to a return without an avowry,” and this for a good reason; a plaintiff has no right to retain the possession of property illegally taken from another by a replevin.
This court cannot determine what the jury Were authorised to find, from the evidence given on the trial, nor is
Upon the issue on the second plea the jury found that the “ property was not the defendant’sbut this, I apprehend, is not a sufficient finding by the jury that the “ property was the plaintiff’sthe verdict may be true in point of fact and still it does not establish the right of the party to recover, because a stranger might be entitled to it. The authorities cited in Bacon’s Abr. are numerous, and the rule deduced from them is, that “ verdicts which do not find all that is in issue, or which vary from the issue,are in general bad f and in 1 Archb. 189, it is said, “ a verdict must comprehend the whole issue or issues submitted to the jury in the particular cause; otherwise the judgment founded on it may be reversed.” Again, “ a verdict is void which finds the matter so imperfectly that there does not appear a good title for the plaintiff.” “ It must find so much of the issue as maintains or avoids the bar.”
In applying the doctrine contained in these authorities to the case under consideration, I do not perceive upon what grounds this verdict is to be sustained. All the issues most clearly are not found, and the verdict is variant. What title can be adjudged to the party by this finding ? We can say that the defendant below has not title to the property in dispute, because the jury havp so declared: but can judgment be pronounced upon a fact not found ? The defendant in the court below is not entitled to judgment upon the verdict because the plea in bar is not maintained; and as the bar seems not to be avoided, neither party are entitled to judgment Upon the verdict. I cannot perceive the difference between a verdict which does not find the whole of a single issue, but only a part, and one which does not find all of the several issues where it is necessary they should be found, to entitle a plaintiff to a judgment.
The case of Miller v. Trets, (1 Ld. Raym. 324,) was a case in error to the exchequer chamber in England. The verdict, which was the matter complained of, did not comprehend the whole issue, a part of the facts denied by the plea were not found, and it was held bad and the judgment
The supreme court, in the case of Thompson v. Button, (14 Johns. R. 86,) put the decision of the question raised for determination expressly upon the ground that the intention of the jury could not be mistaken, from the fact that they found the defendant guilty upon the general issue, which the court assumed would not have been done if he had made out a justification according to the avowry. There are cases in the
And this being the unanimous opinion of the court, the judgment of the supreme court was thereupon reversed with costs, and a venire de novo was directed to be awarded.