The first question which the plaintiff' in error raises upon this record, is, as to the form of the verdict. It is claimed, that the verdict is wrong, because it does not find the forcible entry and detainer alleged in the complaint, specially ; but follows the issue found in the case, upon the defendant’s plea of not guilty in manner and form as in the complaint is alleged ; and only finds that the defendant is guilty, as in the complaint is alleged. It is said, that the statute upon this subject expressly requires a special finding . and that, as it gives a remedy, unknown to, and at va-rience with the common law, and is summary in its provisions, and settles the right to the possession of real estate, irrespective of the title of the parties, it ought to be strictly construed ; and thus construed, it is insisted, that unless the jury, expressly, and in terms, find a forcible entry, or the forcible detainer complained of, the proceeding is erroneous.
The statute does indeed say, that, “ if the jury find, that a forbible entry has been made into the houses, lands, or tenements, or that the same are detained, with force and strong hand, as complained of, then such judge and justice shall render judgment,” &c. Stat. 286. (ed. 1838.) By this, it is undoubtedly made necessary, that the forcible entry or detainer complained of, should be found ; or restitution can not be awarded. Indeed, such would be law, if it was not expressly required by statute. Judgment is but the sentence of the law upon the result of proceedings : it must, therefore, be founded upon facts. There can be no judgment to redress an injury, until it is first found, that an injury has, in fact, been committed. But it does not follow from this, that a
If then, the issue was properly found in this case ; that is to say, if the plea of not guilty is a good plea in this action, then, inasmuch as the jury have answered it explicitly, and in the accustomed manner, it would seem that they have done all that ought to be required of them. Is not guilty a good plea in this action 1 Judge Swift says, that from the nature of the case, it must be the usual plea. 1 Sw. Dig. 651. And, in looking through our reports, we find that in practice it has been the usual plea. 2 Root 472. 411. 4 Conn. R.79. 17 Conn. R. 209. See also 13 Vin. Abr. 404, where it is said, this is a proper plea. Besides, the statute upon which the plaintiff in error relies, shows, that the legislature contemplated this as a proper plea. It provides! that if the jury shall find the persons complained of “not guilty,” then costs shall be taxed in their favour. But the jury could not find the persons not guilty, unless upon an issue founded upon this plea.
It was said in argument, that the complaint was for a forcible entry into the said premises, and also for a forcible detainer thereof ; and that some of the jury might have thought the forcible entry proved, and some might have rested their verdict upon the forcible detainer; and thus, by uniting the two causes, in this manner, the complainant might have obtained the verdict, when, if they had been required to find a verdict specially, they would not have agreed to a verdict for the complainant on either ground. How it would be, if two separate and distinct causes of action had been joined in one count of the complaint, is not, perhaps, very material. Even in that case, though the count might be bad for duplicity ; yet a general finding, like a general finding where there are several counts in the same declaration, would probably involve the truth of both or all the separate and distinct causes of action set up in the complaint. This, however, is not such a case. The plaintiff here counts
2. It is insisted, that the verdict was not properly rendered or authenticated ; in other words, that it does not sufficiently appear that it was, in fact, the verdict of the whole jury.
It is shown, in the motion in arrest, that in the progress of the trial, the court enquired of the jury, if they had agreed in a verdict; that Sands Adams, Esq., one of said jurors, answered that they had ; and thereupon he handed said verdict to Judge Whittlesey, and it was read in court; but no enquiry was made of the jury, whether they all concurred in it.
No question appears to have been made, in the court below, but that this inquiry was properly put to the jury, after the cause had been committed to them by the court, and they had had sufficient time to consider it. Nor does it appear, that the defendant there had any reason to doubt, that all the jurors were in fact present in court, when this enquiry was put to them ; and that they heard and saw all that passed between the court and Mr. Adams, acting as their foreman, and assented to it all. Indeed, no questions of this sort are made before us: but the case is put upon the ground, that the verdict was not sufficiently authenticated ; and the claim is, that unless the jury are called in order to see that they are all present, and do in fact assent to the verdict, it cannot be received by the court; or if received, must be set aside. This objection, then, is strictly technical; and if permitted to prevail, it must be upon some stubborn principle, which can neither regard the probable truth of the facts, nor the justice of the case. It has accordingly been insisted upon as well settled, that, where there is a special court, or a court of limited jurisdiction ; or where special
The incidental remark of the judge, in giving the opinion of the court, in Mead v. Smith, speaking of the manner in which verdicts are taken in our superior and county courts, that this was the usual and u only proper” mode of assenting to a verdict, must be taken in reference to the case then before the court. Thus taken, the remark is strictly correct, though noth-*ng more is meant by it, than that it is the most convenient and proper mode of assenting to a verdict.
It was not intended, by that remark, to say, that there was no other mode in which the assent of the jury to a verdict may be shown. No one would doubt, we presume, that, if the jury all signed a verdict, their assent to it would be sufficiently shown ; yet it would not be as convenient to do this, as to take the course usually practiced in our courts. All that is required, is, that the verdict should be rendered in open court, by the whole jury. The only convenient and proper form to do this, is that which is usually practiced in our superior and county courts ; but it does not follow, that there may not be other less convenient and less proper modes by which a verdict may be received. The case of The King v. Wooller, is rather an authority to show that it is to be presumed that the jury assent to a verdict rendered in their presence and hearing. It is very evident, that no new trial would have been advised in that case, had there been no reason to doubt whether the jury were so present in court as to be able to hear what passed ; a part of the jury were in an adjoining room, and though the door was open, yet they could not all be seen by the judge, and it was impossible to say, that they could all hear what passed in court, when the verdict was rendered.
The defendant’s motion in arrest was overruled, by the court, without finding it to be insufficient, in the usual form of finding the issue upon a demurrer. This is claimed to be erroneous. Whether it would be proper, upon a demur
In this opinion the other Judges concurred.
Judgment affirmed.