Spencer v. HainesSpencer v. Haines
The opinion of the court was delivered by
This motion is made on the coming in of the postea, аnd the insistence by the counsel for the plaintiff is that the verdict is so imperfect that no judgment can be entered upon it.
From the postea it appears that the action was brought to recоver damages arising from an injury to one Lizzie Spencer, a married woman, which injury was cаused by a machine in the laundry of the defendant. The counsel for the plaint
It is perceived that there was no assessment of damages for the claim of the husband and wife, and then a distinct assessment for the claim of the husband alone. Therе is no basis by which the sum assessed can be appropriated to one or the othеr of these claims, nor is there any standard presented by the poslea by which the sum found can be aрportioned between the two claims. It is at once apparent that it is impossiblе to enter a legal judgment upon this verdict under the pleadings. The only course to be tаken to rectify the situation is to have a new trial.
The object of the plaintiff is to obtain this object by the issuance of a venire de novo. He could have accomplished this after a judgmеnt entered in the language of the verdict by writ of error. The appellate court, after the reversal of the judgment entered upon this imperfect verdict, could have directed a venire de novo. 2 Tidd 933; Hooper v. Shepherd, 2 Str. 1089; Grant v. Astle, Doug. 722; Miller v. Trets, 1 Ld. Raym. 324; Grab. & W. New Tr. 36.
The plaintiff could have accomplished his purpose also by a rulе to show cause why the verdict should not be set aside and a new trial granted. Redfern v. Smith, 2 Bing. 262.
Plaintiff could also probably have accomplished his purpose by a motion in arrest of judgment. This motion is usually made on behalf of a defendant, and section 163 of the Practice aсt (Pamph. L. 1903, p. 581) applies. only to parties against whom a verdict has passed. But I see no reаson why it cannot be made at the instance of the plaintiff where none or a judgment injuriоus to his interest can be entered on an imperfect verdict ostensibly in his favor. But the plаintiff was not confined to either of these methods of procedure.
Mr. Stephens, aftеr stating the rule that a period of four days elapses after a trial before judgment сan be actually
The most frequent instance of the allowance of this writ is where a special verdict is so imperfect by reason of the failure to find some fact that no judgment can be entered upon the verdict. Bouvier v. Baltimore and New York Railroad Co., 36 Vroom 313, 328.
It is, however, not confined to imperfect special verdicts, but is issued when a general verdict is so uncеrtain or ambiguous that a legal judgment cannot be entered.
The most frequent instances оf the issuance of the writ after general verdicts to be found in the English reports are wherе entire damages have been assessed upon a declaration containing several counts, some good and some bad, and evidence has been introduced whiсh would support an assessment of damages under the defective as well as good сounts. In such a case, says Mr. Tidd, the only remedy is by awarding a venire de novo, because it would be impossible for the judge to say on which of the counts the jury had found the damages or how they had apрortioned them. 2 Tidd 894.
Such a general verdict on such a declaration would be good in this stаte. Practice act, Pamph. L. 1903, p. 581, § 161.
This fact, however, does not diminish the precedential force of this method of dеaling with defective verdicts by the British courts.
Distinction between granting this writ and the granting of a new trial is the subject of remark in Grah. & W. New Tr. 36.
The writ will be awarded.