14 Johns. 84 | N.Y. Sup. Ct. | 1817
delivered the opinion of the court. This case comes before the court on a writ of error to the common
The first question is, whether this omission will render the judgment erroneous. The case of Hawks v. Crofton, (2 Burr. 698.) is very much in point to show that this omission is to be deemed matter of form, and does not vitiate the judgment. That was an, action of trespass, assault, and battery, to which the defendant pleaded not guilty, and non assault demesne, on which issue was joined. Upon the trial, the jury found the defendant, generally, guilty, and no verdict, particularly, on the other issue. The case came before the IC. B. on writ of error, and the judgment was affirmed. The court said, that where the intention of the jury is manifest and beyond doubt, the court will set right matters of form, and the mere act of the clerk; and the rule as laid down in Hob. 54. is recognised as correct, that though the verdict may not conclude formally and punctually in the words of the issue, yet, if the point in issue can be concluded from the finding of the jury, the court will work the verdict into form, and make it serve. The same rule is recognised by the supreme court oi Massachusetts, in Hodges v. Raymond, (9 Mass. Rep. 316.) In the case before us, it is very evident that the jury would not have found the defendant guilty upon the general issue, if he had made out his justification, according to the avowry. The intention of the jury cannot, therefore, be mistaken; and the omission to enter a verdict applicable particularly to the second issue, is mere matter of form.
The next question is, whether the plaintiff below could
The judgment of the court below must, therefore, be affirmed»
Judgment affirmed»