4 Port. 198 | Ala. | 1836
— Tiie defendants in error, brought an action of trespass in the Montgomery Circuit Court, to. try titles, &c., to lots numbered eighteen, nineteen, and twenty, situate on the south side of Washington street, in the town of Montgomery.
The cause was tried on issues formed on the pleas not guilty and libemm tenementum, and the jury returned a special verdict in these words — “We find that the defendant has failed to prove to the satisfaction of the jury—
“First that the administrator gave bond in compliance with the requisition of the law.
“ Third — That he failed to prove the requisite citation to the heirs.
“ Fourth — That he failed to prove the appointment of guardians to the minors.
“ Fifth — That he failed to prove the appointment of commissioners for the sale of the land.
“ Sixth — That he failed to prove that commissioners conveyed the title to the property in question; but on the contrary, that it was conveyed by (he administrator.
“ If, in the opinion of the Court, such' failures totally invalidate and make void such conveyance, then we find for the plaintiff, for lots number eighteen, nineteen, and twenty ; otherwise, for lot number eighteen only, and assess damages at one cent.”
The record discovers, that two days after this verdict was returned and the jury discharged, the judge, from his own recollection of the evidence, the accuracy of which was verified by the counsel for the defendants in error, on their motion, allowed the evidence in the cause to be entered on the proceedings of the Court, though objected to, by the counsel for the plaintiff' in error. On the verdict, the Court rendered a judgment for the plaintiffs below, to reverse which this cause comes here.
Several exceptions were taken on the trial to the instructions of the judge to the jury, but as they have not been noticed in the argument, we will only enquire, whether the verdict is a sufficient warrant for the judgment.
In referring the facts found by them to the Court.
We do not feel ourselves authorised to aid the verdict by a reference to other facts, on the record.— Were we to do so, the verdict, instead of being the act of the jury, would be that of the Court. Such an assumption, we would consider a palpable, if not alarming invasion of the rights of the jury.
In M’Arthur vs Porter’s lessee
A deed was found in the record, but not being part of the verdict, the Court determined that they could not say it was part of the finding of the jury, and that they would not refer to it in aid of the verdict.
So in Jenks, et al. vs Hallett, et al.
In Seward vs Jackson
In Barnes, et al. vs. Williams
It is competent-for parties, by consent, in a Crurt of original jurisdiction, to withdraw the decision, upon evidence, from the jury, and substitute in their stead, the judge, by making a case agreed. And this is done on demurrer to evidence. But where the
We are not to be understood as deciding, that the jury should disclose, in a special verdict, every fact, with the proof of which they are satisfied. If they return facts, intelligently set forth, which shew no right to recover, or which shew a good cause of action, without any available defence, it would certainly be the duty of the Court to render a judgment;
But the verdict in this case, disclosing no facts to, shew the right of the plaintiffs below to recover, or the insufficiency of the defence, and nothing being allowed to be intended in favor of either, the judgment must be reversed, and the cause remanded, that a venerie facias de novo may be awarded.
I Peters, 6516
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