Opinion
03-01-1826
M'Michen v. Amos and Others. [*]
Johnson, for the appellant. Leigh, for the appellees.
This was a suit for freedom, in the Superior Court of Law for the county of Ohio, brought by Amos for the benefit of himself, and that of his infant brother, sisters and niece. The declaration is in the usual form of trespass, assault and battery, and false imprisonment.
The defendant, M'Michen, pleaded, " protesting that the plaintiffs are his slaves for life, says he is not guilty of the trespass, assault and imprisonment in the declaration supposed, and of this he puts himself upon the country."
The plaintiffs replied, " that by reason of any thing by the defendant in protesting alleged, they ought not to be barred from having and maintaining their action against him, because they say they are free persons."
Upon this replication issue was joined.
The jury found the following verdict: " That they find for the plaintiffs their freedom, and one cent damages, subject to the opinion of the Court, whether the removal of Richard Wetherhead, with his family, from the State of Maryland, to the county of Rockingham in this State, in the month of November, 1800, and the bringing with him the plaintiffs, and the taking of the oath prescribed by law, within 60 days from his arrival in the said county of Rockingham, by Elizabeth the wife of the said Richard, was a compliance of the law regulating the importation of slaves. If, in the opinion of the Court, the law be for the defendant, then they find for the defendant."
The Court gave judgment for the plaintiffs, and added, " It is therefore considered by the Court, that the plaintiffs recover of the defendant one cent, the damages assessed by the said jury, together with their freedom, and that they be discharged from the imprisonment in the declaration complained of." From this judgment the defendant appealed.
Judgment affirmed.
Johnson, for the appellant.
Leigh, for the appellees.
JUDGE CABELL delivered his opinion, in which the other Judges concurred. [*]
OPINION
JUDGE CABELL
Several objections were made by the counsel for the appellant, to the form of the proceedings in this case. Before I examine them, I will remark that this Court has often declared, that the same strictness as to form will not be required in actions for freedom, as in other cases; and that these actions, like actions of ejectment, will be moulded into such form, as is best calculated to try the real question in controversy.
The first objection is, that the issue was not joined on the plea of not guilty, but on the protestation in that plea that the plaintiffs were the slaves of the defendant. It is very true that that was an irregularity; but as the issue was joined upon the fact whether the plaintiffs were free or not, the merits of the controversy between the parties were fairly brought in issue; and it is too late, after verdict, to take advantage of the informality in joining the issue.
The next objection is, that the judgment directs the plaintiffs to be discharged from the imprisonment in the declaration complained of. The judgment that the plaintiffs recover their freedom, and the damages assessed by the jury, had the full effect to discharge them from the custody of the defendant; the additional direction complained of, was, therefore, mere surplusage, which cannot vitiate the judgment. Nor would any useful purpose be answered by the correction of this irregularity, since no question of costs is involved.
It was next objected, that judgment should have been rendered for Amos only; because he alone declared as plaintiff, suing for himself and the other petitioners, who were infants; and it was contended, that if the verdict had been for the defendant, a judgment thereon would have been no bar to a new suit by the others. Although the declaration was, in this respect, informal; yet I think that all the petitioners were substantially plaintiffs; and as their case was fairly tried, had it been against them, it would have been so far a bar, as that no Court would have given them permission to bring another suit. The declaration in the case of Maria v. Surbaugh228, was in the same form; yet it did not preclude the Court from deciding the merits of the case, as to the children of Maria.
I come now to the more important questions made in this case.
The verdict of the jury is as follows: " We find for the plaintiffs their freedom and one cent damages; subject to the opinion of the Court, whether the removal of Richard Wetherhead, with his family, from the State of Maryland to the county of Rockingham, in this State, in the month of November, 1800, and the bringing with him the plaintiffs, and the taking the oath prescribed by law, within 60 days after his arrival, in the county of Rockingham, by Elizabeth, the wife of the said Richard, was a compliance with the law regulating the importation of slaves. If, in the opinion of the Court, the law be for the defendant, then we find for the defendant."
It is contended by the counsel for the appellant, that this verdict is too imperfect, on account of its uncertainty, to enable the Court or render judgment.
This is not a special verdict, in the usual acceptation of the term; a verdict, finding all the facts supposed to belong to the case, and referring to the Court the decision of the law arising on those facts. The jury do not profess to find all the facts which constitute the case. On the contrary, the finding is a general one, that the plaintiffs are free, unless, upon a single point of law reserved, the Court shall be of opinion that the law is for the defendant. There can be no difficulty in comprehending the true nature of a verdict like this, although writers, in attempting to name it, may not have been fortunate in using terms of great precision. In 2 Tidd's Prac. 809, it is said, " another method of finding a species of special verdict is, when the jury find a verdict generally for either party, but subject nevertheless, to the opinion of the Court above, on a special case, stated by the counsel on both sides, with regard to a matter of law." In 1 Archbold, 192, it is said, " also where a difficulty in point of law arises, the jury may, instead of finding a special verdict, find a general verdict, for the plaintiff, subject to the opinion of the Judge, or the Court above, on a special case stated by the counsel on both sides, with regard to the matter of law." It is not material, whether, with one of these writers, we call this proceeding " a species of special verdict," or with the other, " a general verdict" with " a special case." They both mean the same thing; a general conclusion drawn by the jury, from the facts, in favor of one or the other party; subject, however, to the opinion of the Court as to the law arising on a case specially stated by the jury. Such a general conclusion for one party, necessarily carries with it the idea that that party must prevail, unless the law upon the special case referred to the Court, shall be against him. All facts, not found in the special case, are excluded from the consideration of the Court, or are negatived by the general finding in his favor. The " special case" would be nugatory, if the Court were to go out of it.
The case specially stated by the jury, is, that Richard Wetherhead removed with his family from Maryland to Rockingham county in Virginia, in November, 1800, and brought with him the plaintiffs; and that Elizabeth, the wife of the said Richard, within 60 days after his arrival in Rockingham, took the oath prescribed by law; and the question submitted by the jury is, whether the taking of the oath by the wife, was a compliance with the law regulating the importation of slaves.
The Act of 1792, Rev. Code, ch. 103, prohibited the importation of slaves, but contained an exception in favor of persons removing from any other State, and becoming citizens of this, and bringing slaves with them, provided that within 60 days after such removal, they take, before some Justice of the Peace, a certain oath therein prescribed: the substance of which was, that the slaves brought in by them were not brought in with intention to sell them, nor were they imported from Atrica, or the West Indies, & c.
Whether the wife of a person removing to his State, and bringing slaves with him, can take the oath to any legal purpose, merely because she is wife, was admitted to be too plain for argument; for she cannot swear as to the intention of the husband, nor is she the person bringing the slaves; and yet this is the only question submitted by the jury. The language of the jury is plain and unequivocal, and will not bear any other rational construction.
But it is said, that this question is so plain that we cannot presume the parties intended to submit it: that no lawyer would have made it, nor would the Judge have suffered it to be put upon the record. This is, indeed, a novel argument. If the records of this Court be searched, it would be found that questions as plain (plainer there could not be) have been often made, and in some instances, incorrectly decided, in the Inferior Courts. It would be strange indeed, if the very plainness of the case were to be made the only foundation of doubts and difficulties.
It is however contended, that there may be cases in which the wife may be the proper person to take the oath, as where the slaves are her separate property, or where they are held by her as a trustee, or as executrix or administratrix, & c. But, I think it very clear, from the positive finding of the jury, that the jury did not mean to submit a question on any such case. I think it very manifest, that the Act of Assembly intended the oath to be taken by the proprietor of the slaves; although the proprietor is not otherwise described than as the person removing and bringing the slaves with him. When, therefore, the jury speak of Richard Wetherhead, and apply to him the very words found in the Act of Assembly, removing and bringing the slaves with him, they intended to speak of him as the proprietor; and when they speak of the wife, they speak of her merely as wife. Besides, if the wife had been the proprietor, it cannot for a moment be believed, that the jury would have been permitted to be silent as to a fact, which must have been known to the counsel and the Court, to be so important to the correct decision of the cause. But be this as it may, it is sufficient to say, that it does not appear by the verdict, that any of the supposed cases existed, or were alleged by the parties to exist; or if alleged to exist, the jury have negatived it, by not finding it to exist. No verdict of this kind could ever stand, if the party or the Court were allowed to suppose facts, not found in the special case. It is not necessary that the jury shall expressly find, that certain facts do not exist. The mere silence of the jury is tantamount to an express finding that no facts exist, repugnant to the general conclusion they have drawn in favor of the party. In the case of Hook v. NannyMunf. 379, (which, like this, was a case for freedom,) the jury find certain facts, and then conclude, " we therefore find the plaintiffs free." Judgment was rendered for the plaintiffs, and was affirmed by the unanimous opinion of this Court. Judge Coalter remarked, " The jury, in this case, find two facts: 1. That Nanny was brought into this Commonwealth by Jones, from North Carolina, subsequent to the 5th of October, 1778. 2. They also find from inspection, that the plaintiff is a white woman. I say nothing," (adds the Judge,) " of the other finding, viz: 'that if the plaintiff was a slave, it doth not appear that Jones did comply with the provisions of the Act to prevent the farther importation of slaves,' because, (says the Judge,) the jury need not find the negative of a fact, which the defendant must shew, in order to support his plea of justification. That part of the verdict, therefore, must be clearly rejected as surplusage. The case will stand upon the other two facts, accompanied by the general finding that the plaintiffs are free. The facts aforesaid are entirely distinct in their nature, and not depending at all on the same testimony; and either of them, if found upon proper legal testimony, will entitle the party, ipso facto, to freedom, unless the defendant can shew something to take his case out of their influence." In the case of Garnett v. Sam, 5 Munf. 542, the same principle is advanced by this Court. Suppose, in the case before us, the jury had found the plaintiffs free, subject to the opinion of the Court, on the following fact; that Wetherhead removed from Maryland to this State, in the year 1800, bringing the plaintiffs with him as slaves. Most unquestionably, this Court would adjudge them to be free. But, as it was proved to the jury, that the wife took the oath, they submit the single question, whether this taking of the oath was a compliance with the law; and as it is admitted that it was not, I cannot see how it can make the case of the defendant better than if it had not been stated at all.
The objection, therefore, as to the uncertainty of the verdict, is without foundation.
It is said, that according to the principles established in Garnett v. Sam & c., 5 Munf. 542, and Abram & c. v. Matthews, 6 Munf. 159, it might have been left to the jury, to presume from the facts found, that the wife, in this case, was the proper person to take the oath. In both of these cases, more than 20 years had elapsed, between the importation of the slaves and the commencement of the action; and it was decided, that such a lapse of time should be left to the jury as the foundation of a presumption, that the oath required by law had been rightly taken. And considering the great difficulty which would generally attend the proving such a fact, after such a lapse of time, nothing could be more reasonable than such a presumption. But such presumption, however well founded, was liable to be repelled by proofs. In the present case, the time was short of 20 years. It is not pretended that the husband took the oath. That fact is negatived by the express finding, that the oath was taken by the wife. The facts, which alone could justify the oath by the wife, do not depend upon such fugitive testimony, as did the fact presumed in the cases referred to. If the wife had the separate property in the slaves, or if she were trustee, executrix or administratrix, such fact might have been proved by testimony in writing or on record; or, if that evidence had been lost, its former existence might have been established by parol testimony; or, if the husband had died within the 60 days, that fact, (admitting it to be sufficient to justify the oath by the wife,) was very different from the fact presumed in the cases referred to. It did not depend upon the testimony of a single witness who may have died. It must have been a fact of notoriety, and susceptible of easy proof. I therefore think it ought not to have been left to the jury, to presume such facts as would justify the wife in taking the oath, until at least 20 years had elapsed. But be this as it may, we do not know that any such question was made at the trial; and it is now too late to make it. If such presumption was pressed on the jury, it might have been, and probably was, repelled by opposing testimony. The jury have not, in fact, made any such presumption; and it is not competent to the Court to make it for them.
But it is contended, that the right of the appellees to freedom, under the Act of 1792, was taken away by the Act of 1819, which releases all forfeitures and penalties incurred under former laws, and not already recovered or enforced. 1 Rev. Code, 422, sec. 4. It may be admitted, that the right of a slave to be free, in consequence of being imported contrary to the Act of 1792, was a forfeiture imposed upon the owner, by way of penalty. But at the very moment that this forfeiture was incurred by the owner, under that Act, a perfect right to freedom vested in the slave, by the same Act. I call it a perfect right, because its enjoyment might be enforced by due course of law, the moment it vested; and it vested as soon as the violation of the law was complete; viz: as soon as 12 months elapsed from the importation. He was from that moment a free man " illegally held in slavery." If it were not so, he could never recover freedom; for, it is the business of Courts, not to create, but only to enforce existing rights. Again, out laws declare, " that all children shall be bond or free, according to the condition of the mother." Maria v. Surbaugh228. If a female slave had been brought into this State, under the Act of 1792, had remained here 12 months, (the requisites of the law not being complied with,) and then had had a child, and died; it is perfectly clear, that such child would be entitled to, and would receive his freedom; and this decisively proves, that the mother was in fact, free, although she had not been declared so by the judgment of a Court of Law. The Act of 1819 contemplated cases, in which rights might be absolutely vested under former laws, which were not intended to be disturbed; and also cases in which forfeitures had been incurred, where no right had vested in any particular persons. The Act of 1806 afforded instances of this latter description. That Act declares, that an illegal importer of slaves shall forfeit all right to the slaves, and that such right shall vest in the overseers of the poor of any county, who should apprehend, or attempt to apprehend them. The right forfeited by the owner, did not vest, however, in any one, until the slaves were apprehended, or until an attempt was made to apprehend them. These were the forfeitures, and such as these, that the Act of 1819 intended to remit; and such remission violated the rights of no one. But under the Act of 1792, a right to freedom was actually vested in the imported slaves; and it was the intention of the Act of 1819, to preserve that right.
The judgment must be affirmed.
VERDICT.
I. General Verdict.
II. Form of General Verdict.
A. Duty of Court.
B. In Civil Cases.
1. Proper Form on Demurrer to Evidence.
C. In Criminal Cases.
III. Requisites of General Verdict.
A. Deliberation.
B. Unanimity.
C. Conformity to Instructions.
D. Responsiveness to Issue.
1. Generally.
a. In Particular Instances.
E. Certainty of Finding.
1. In Civil Cases.
a. Sufficient.
b. Insufficient.
2. In Criminal Cases.
a. Sufficient.
(1) Rule.
b. Insufficient.
F. Referring to Indictment.
G. Signing.
H. Perfecting.
I. Impeaching.
IV. Amount Found by Verdict.
A. Excessive.
B. Certainty.
V. Rendition and Reception of Verdict.
A. In Criminal Cases.
B. In Civil Cases.
VI. Effect of the General Verdict.
A. General Rule.
1. Illustration of Rule
a. In Civil Cases.
b. In Criminal Cases.
(1) Curing Errors.
(a) In Civil Cases.
(aa) When Cured.
(bb) When Not Cured.
(b) In Criminal Cases.
(aa) When Cured.
VII. Construction of Verdict.
A. General Rule.
B. In Civil Cases.
C. Criminal Cases.
VIII. Amendment of Verdict.
A. General Rule.
B. Time of Amendment.
C. Rule Illustrated.
1. Amendment by Court.
2. Amendment by the Jury.
IX. Special Verdict.
A. Rules Governing.
1. Question Submitted Must Be Material.
a. Exception.
2. Certainty of Finding.
a. The Rule.
b. Rule Applied in Particular Instances.
(1) In Actions of Ejectment.
(2) In Writ of Right.
(3) Action on Protested Bill of Exchange.
(4) In Action on Bond.
(5) Fixing Liability for Assault.
(6) On Question of Fraud.
(7) In Action for Rent.
(8) In Action of Detinue.
(9) In Action on Note.
X. Subject to Court's Opinion.
XI. Discretion as to Nature of Verdict.
Cross References to Monographic Notes. Amendments, appended to Snead v. Coleman, 7 Gratt. 300. Appeal and Error, appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263. Autrefois, Acquit and Convict (Jeopardy), appended to Page v. Com., 26 Gratt. 943. Damages, appended to Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. 455. Demurrers, appended to Com. v. JacksonVa. Cas. 501. Detinue and Replevin, appended to Hunt v. Martin, 8 Gratt. 578. Ejectment, appended to Tapscott v. Cobbs, 11 Gratt. 172.
Evidence, appended to Lee v. TapscottWash. (VA) 276.Homicide, appended to Souther v. Com., 7 Gratt. 673. Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674. Instructions, appended to Womack v. Circle, 29 Gratt. 192. Interest, appended to Fred v. Dixon, 27 Gratt. 541. Issue out of Chancery, appended to Lavell v. Gold, 25 Gratt. 473. Judgments, appended to Smith v. Charlton, 7 Gratt. 425. Juries, appended to Chahoon v. Com., 20 Gratt. 733. Larceny, appended to Johnson v. Com., 24 Gratt. 555.
New Trials, appended to Boswell v. Jones, 1 Wash. (VA) 322.Unlawful Detainer, appended to Dobson v. Culpepper, 23 Gratt. 352. Variance, appended to Harris v. Harris431.
1. GENERAL VERDICT.
Separate Verdict, Where Two Persons Tried Jointly. -- Where two persons are indicted and tried jointly for the same offense the same jury may, by separate verdicts, acquit the one and convict the other. State v. Lilly, 47 W.Va. 496, 35 S.E. 837.
Exceeding Authority in Fixing Penalty, Surplusage. -- And, it is held in State v. Greer, 22 W.Va. 800, that, though a jury have no authority to fix the term of imprisonment, yet, if they do, it is mere surplusage, and the verdict of guilty is good.
On Single Count Alleging Burglary and Larceny. -- Upon a count properly alleging both burglary and larceny, there may be a general verdict of guilty. State v. McClung, 35 W.Va. 280, 13 S.E. 654. See State v. Williams, 40 W.Va. 268, 21 S.E. 721; Speers v. Com., 17 Gratt. 570; Moody v. State, 1 W.Va. 337.
When Grand, and Petit, Larceny Charged. -- And, upon an indictment for grand larceny a verdict convicting of petit larceny is good, as the major includes the minor offense. State v. McClung, 35 W.Va. 280, 13 S.E. 654. See Howe's Case, 26 W.Va. 110; Hardy v. Com., 17 Gratt. 592; Canada v. Com., 22 Gratt. 899; Ex parte Garrison, 36 W.Va. 686, 15 S.E. 417; State v. Meadows, 18 W.Va. 658.
Where More than One Count. -- Although an indictment may contain more than one count, a verdict of " guilty as charged in the indictment," is good. Moody v. State, 1 W.Va. 337 at 340.
One Good, and Other Bad, Counts. -- But, a good count in the indictment, where there are others which are bad, will not support a general verdict of guilty, when the offenses are punishable by confinement in the penitentiary. Clere v. Com., 3 Gratt. 615; Mowbray v. Com., 11 Leigh 643; Shifflet v. Com., 14 Gratt. 652 at 672; Jones v. Com., 86 Va. 950, 12 S.E. 950. See Kirk v. Com., 9 Leigh 627 (overruled).
II. FORM OF GENERAL VERDICT.
A. DUTY OF COURT. -- Trial courts should see that verdicts are put in proper form before juries are discharged, but if any change is made in the substance of the verdict, the jury should be sent back to their room, where they can, untrammeled by the presence and influence of others, find such verdict as they think proper. Porterfield v. Com., 91 Va. 801, 22 S.E. 352.
B. IN CIVIL CASES.
In Ejectment. -- In ejectment, the verdict read, " we, the jury, find for the plaintiff the land in the declaration mentioned, and one cent damages," which, it seems, was sufficient in form. M'Murray v Oneals, 1 Call 246, 249.
And on a plea of not guilty to a declaration in ejectment, that defendant unlawfully withhold, possession of land, the verdict was, " we, the jury find that the defendant does not withhold possession of the land in the declaration mentioned, as alleged, and therefore find for the defendant on the issue joined," which was good in form. Andrews v. Roseland Iron & Coal Co., 89 Va. 393, 395, 16 S.E. 252.
On Writ of Unlawful Detainer. -- A verdict in a writ of unlawful detainer, reading, " we, the jury, find that the defendants are unlawfully in possession and withhold from the plaintiffs the premises in the summons mentioned," is sufficient to enter judgment upon. Mann v Bryant, 12 W.Va. 516. See Paul v. Smiley, 4 Munf. 468; M'Murray v. Oneal, 1 Call 246.
In Action of Trespass. -- A verdict in an action of trespass on the case, reading, " we, the jury, find for the defendants," is good, the plea being " not guilty." Peters v. Johnson, 50 W.Va. 644, 41 S.E. 190; Lewis v. Childers, 13 W.Va. 1.
1. Proper Form on Demurrer to Evidence. -- In an action on notes, the only defense set up is for damages by way of special set-off and plaintiff demurs to defendant's evidence, it seems, the proper form of verdict would be, " we, the jury, upon the issue joined, find for the defendant and assess his damages at a stated sum, subject to the opinion of the court upon the plaintiff's demurrer to the evidence; but if, upon the demurrer to the evidence, the law be with the plaintiff, then we find for the plaintiff the sum ascertained to be due him." Southern Roanoke L. Co. v. Roberts, 99 Va. 487, 39 S.E. 133.
C. IN CRIMINAL CASES. -- When the record shows that a verdict was delivered in open court, it is immaterial that it does not show the verdict was signed. Hall v. Com., 89 Va. 171, 15 S.E. 517; Woods v. Com., 86 Va. 933, 11 S.E. 799; Crump v. Com., 98 Va. 833, 23 S.E. 760. See also, State v. Morgan, 35 W.Va. 260, 13 S.E. 385.
And so, the verdict is sufficient in form if signed by J. S. Pierpont, though the record shows Jerimiah S. Pierpont was the juryman sworn. State v. Morgan, 35 W.Va. 260, 13 S.E. 385.
On Charge of Murder. -- " We, the jury, agree and find the defendant, Virgil Staley, not guilty of murder in the first or second degree, as charged in the within indictment, but do agree and find the defendant, Virgil Staley, guilty of voluntary manslaughter," is sufficient in form. State v. Staley, 45 W.Va. 792, 32 S.E. 198.
And, on an indictment charging one as principal in the second degree to a murder, a verdict which finds the accused " guilty, as charged in the indictment," and fixes his punishment, is sufficient. Horton v. Com., 99 Va. 848, 38 S.E. 184.
On Charge of Breaking and Entering. -- A verdict finding defendant guilty of breaking and entering the store of a certain firm is sufficient, although it does not set out the individual names of the partners as alleged in the indictment. Henderson v. Com., 98 Va. 794, 34 S.E. 881.
On Charge of Malicious Stabbing. -- On a trial for " maliciously stabbing with intent to maim, disfigure, disable and kill," a verdict finding " the defendant not guilty as charged," but finding him " guilty of unlawful cutting," is not good in form. State v. Davis, 31 W.Va. 390, 7 S.E. 24.
III. REQUISITES OF GENERAL VERDICT.
A. DELIBERATION.
Jury in Charge of Witness. -- The verdict of a jury in a criminal case will not be set aside merely because the jury was put in custody of a deputy sheriff who had testified for the commonwealth. Reed's Case, 98 Va. 817, 830, 36 S.E. 399.
Compromise. -- And when the jury agree as to the guilt of the prisoner, but disagree as to term of imprisonment, it does not affect the verdict that the term of imprisonment is arrived at by average. Thompson v. Com., 8 Gratt. 637.
B. UNANIMITY.
Presence of Juror. -- The verdict of the jury must be unanimous; and, therefore, if the twelfth juror retires from the court before the verdict is written and received, such verdict is a nullity. Com. v. GibsonVa. Cas. 70.
And so, on trial for grand larceny the jury find prisoner guilty but fail to fix term of imprisonment, and are discharged, but instantly called back, all but one, and then fix the punishment. The verdict was bad. Mills v. Com., 7 Leigh 751.
C. CONFORMITY TO INSTRUCTIONS. -- Though a verdict be contrary to the instructions, yet, if there was no evidence to prove the case supposed by them, it will not be set aside. Smith v. Tate, 82 Va. 657.
D. RESPONSIVENESS TO ISSUE.
1. Generally. -- The verdict of a jury which necessarily disposes of all the issues in the case, is sufficient, although it may not respond separately to each several issue presented by the pleadings. Black v. Thomas, 21 W.Va. 709. See Lewis v. Childers, 13 W.Va. 1; Lanier v. Harwell, 6 Munf. 79.
But where a verdict contains matter of fact which is immaterial, and not responsive to the issue, such matter may be rejected as surplusage, and the verdict shall stand if the remaining portion is responsive to the issue, and not open to any further objection. Martin v. Ohio River R. Co., 37 W.Va. 349, 16 S.E. 589.
a. In Particular Instances.
Actions of Assumpsit. -- Where, in an action of assumpsit the pleas upon which issue is joined are nonassumpsit, payment and set-off, and the verdict found for the plaintiff assess the amount of his damages, and, also, fixes the amount allowed the defendant on his set-off, it is all that is necessary. Smith v. Packard, 94 Va. 730, 27 S.E. 586.
So, too, in an action of assumpsit, where the pleas are nonassumpsit, and the statute of limitations, a general verdict for the plaintiff, fixing the amount of his damages, is responsive to all the issues made by the pleadings. Hansbrough v. Neal, 94 Va. 722, 27 S.E. 593.
Where Title Only Issue in Ejectment. -- In ejectment, where issue is the title only, a verdict may be found and judgment rendered for a tract of land, " according to a survey filed in the cause." Paul v. Smiley, 4 Munf. 468. Compare Gregory v. Jacksons, 6 Munf. 25.
In Ejectment, Must Find Estate in Plaintiff. -- But the verdict in an ejectment case is fatally defective, if it finds the plaintiff is entitled to recover the lands mentioned in the declaration, but fails to find the estate found in the plaintiff. Low v. Settle, 22 W.Va. 387 at 388. Compare M'Murray v. Oneal, 1 Call 246; Elliott v. Sutor, 3 W.Va. 37; Tapscott v. Cobbs, 11 Gratt. 172.
In Detinue. -- In detinue, defendant pleaded non-detinue and special plea in bar, to which pleas there was general replication, denying the truth of them, and issue joined. A general verdict for plaintiff was sufficiently responsive to both issues. Garland v. Bugg, 1 Hen. & M. 374.
In Trespass. -- And, where, in an action of trespass on the case, the verdict reads, " we, the jury, find for the defendants," it is sufficient, as responsive to the issue. Peters v. Johnson, 50 W.Va. 644, 41 S.E. 190.
Suits on Administrator's Bond. -- In suit on administrator's bond the verdict must find that, at the institution of the action there were in the hands of the representative assets, not bound by superior claims, sufficient to discharge plaintiff's debt. Sturdivant v. Raines, 1 Leigh 481. See Eppes's v. Smith, 4 Munf. 466; Rogers v. Chandler, 3 Munf. 65; Gardner v. Vidal, 6 106; Booth v. ArmstrongWash. (VA) 301.
Two Issues in Fact. -- But where there are two issues in fact, and the verdict of the jury answers to only one, there ought to be a venire facias de novo. Hite v. WilsonHen. & M. 268; Brown v. Hendersons, 4 Munf. 492. See Nicholas v. Kershner, 20 W.Va. 251; Williams v. Ewart, 29 W.Va. 659S.E. 881.
E. CERTAINTY OF FINDING.
1. In Civil Cases.
a. Sufficient.
In Action for Waste. -- If the verdict finds defendant guilty of waste, as charged, and then proceeds to assess the damages for the particular parts of the waste charged, but does not set out the locus in quo, nor find any part of the issue for defendant, it is sufficient. Dejarnatte v. Allen, 5 Gratt. 499.
On Promissory Note. -- And a verdict for the debt claimed in the declaration, with interest, etc., subject to a credit for a specified sum, paid at a specified date, is sufficiently certain. Barrett v. Wills, 4 Leigh 114. See Grays v. Hines, 4 Munf. 437.
Action for Damages. -- When a verdict assess " damages for the loss of one-half of a spring at $ 600, and of fourteen acres of land at $ 540, and directs these sums to be applied to bonds as they fall due," it will not be set aside as vague and uncertain. Grayson v. Buchanan, 88 Va. 251, 13 S.E. 457.
In Ejectment. -- And so, where the jury find land was devised to " James instead of Jacobus," it is a mistake that may be corrected by the other part of the finding that " he is the lessor." Pendleton v. Vandevier, 1 Wash. (VA) 388.
b. Insufficient.
If for a Part, What Must Find. -- But, in an action of ejectment, if the verdict is for only a part of the land sued for, the boundaries of the part recovered should be designated. The verdict must be certain in itself, or must refer to some certain standard by which to ascertain the land so found, otherwise it will be too uncertain to warrant a judgment upon it. Slocum v. Compton, 93 Va. 374, 25 S.E. 3.
Libel, in Admiralty. -- Certainty being one of the elements of a verdict, it is held that, a verdict for " the vessel, tackel, apparel and cargo, except that part of the cargo upon which the duties had been paid," was too uncertain. Richards v. Tabb, 4 Call 522.
On Bond. -- And where suit is brought against two persons on a bond, and it abates as to one by his death, a verdict finding only, that the surviving defendant hath not paid the debt, is bad. Triplett v. Micou, 1 269. See also, Green v. DulanyMunf. 518; Buckner v. BlairMunf. 336.
2. In Criminal Cases.
a. Sufficient.
(1) Rule. -- The verdict in a criminal case is always to be read in connection with the indictment, and if, upon reading them together, the meaning of the verdict is certain, it is sufficient. It need not give the name of the prisoner, nor the person assaulted. Hairston v. Com., 97 Va. 754, 32 S.E. 797. See Hoback v. Com., 28 Gratt. 922; Rogers v. Com., 1 Va. Dec. 798; Henderson v. Com., 98 Va. 794, 34 S.E. 881.
Malicious Shooting. -- In Hoback v. Com., 28 Gratt. 922, the accused was indicted for malicious shooting, and the jury found him " not guilty of malicious shooting, as charged, but guilty of unlawful shooting with intent to maim," etc., it was held the verdict was to be read in connection with the indictment, and sufficiently indicated the person. See Hairston v. Com., 97 Va. 754, 32 S.E. 797.
b. Insufficient.
Forgery. -- Indictment charges forgery of a note in first count, and, in the second, the forgery of an indorsement on the note, jury finds prisoner not guilty on the first count, and then say, " on the second count, viz., that of uttering a negotiable note knowing it to be forged, we find prisoner guilty, and fix the term of his imprisonment," etc. The verdict upon the second count is too uncertain. Cocke v. Com., 13 Gratt. 750.
Breaking and Entering. -- And where accused was indicted for breaking into a storehouse and stealing more than four dollars, the verdict found him guilty of grand larceny and fixed his imprisonment at seven years. It was held too uncertain to render judgment upon. Com. v. SmithVa. Cas. 327.
Fixing Shorter Term than Law Allows. -- Also, the verdict of a jury, finding a prisoner guilty, and fixing his imprisonment at a shorter term than the law allows is illegal. Nemo v. Com.Gratt. 558 at 559. See Jones v. Com., 20 Gratt. 848; Richards v. Com., 81 Va. 110 at 116; Ex parte Marx, 86 Va. 40, 9 S.E. 475; Com. v. SmithVa. Cas. 327; Com. v. Percavil, 4 Leigh 686 at 687; Mills v. Com., 7 Leigh 751; Marshall v. Com., 5 Gratt. 663; Com. v. Scott, 5 Gratt. 697.
And, if one be indicted as accessory to murder, a verdict which finds him guilty thereof, but does not say whether he is guilty as accessory in the first or second degree is bad. Com. v. WilliamsonVa. Cas. 211.
F. REFERRING TO INDICTMENT. -- Where, on a sufficient indictment, the jury " find the prisoner guilty, and fix his punishment at eighteen years in the penitentiary," the verdict is not bad because it fails to refer explicitly to the indictment. Rogers v. Com., 1 Va. Dec. 798.
G. SIGNING. -- Where a verdict is duly delivered in court and recorded, though unsigned, it is sufficient. Woods v. Com., 86 Va. 933, 11 S.E. 799. See Hall v. Com., 89 Va. 171, 15 S.E. 517; Crump v. Com., 98 Va. 833, 23 S.E. 760; Gilligan's Case, 99 Va. 816, 37 S.E. 962.
H. PERFECTING. -- After a verdict for felony has been received and read, it is the duty of the clerk, to duly perfect it, to read it over to the jury, and to poll them, and say, " So say you all," or words to that effect. Until this is done any one has a right to retract. Com. v. GibsonVa. Cas. 70.
I. IMPEACHING. -- As a general rule, a verdict cannot be impeached by testimony of jurors of their own misconduct. Bull v. Com., 14 Gratt. 613. See sustaining this view, Shobe v. Bell, 1 39; Harnsbarger v. Kinney, 6 Gratt. 287; Carr v. MagruderPatton & H. 107; Koiner v. Rankin, 11 Gratt. 420; Price v. Warren, 1 Hen. & M. 385; Read's Case, 22 Gratt. 924; State v. Cartright, 20 W.Va. 32; Steptoe v. Flood, 31 Gratt. 323; Danville Bank v. Waddill, 31 Gratt. 469; Moses v. Cromwell, 78 Va. 671; Probst v. Braeunlich, 24 W.Va. 356; Bartlett v. Patton, 33 W.Va. 71, 10 S.E. 21; Graham v. Cit. Nat. Bank, 45 W.Va. 701, 32 S.W. 245; Elam v. Com. Bank. 86 Va. 92, 9 S.E. 498; State v. Robinson, 20 W.Va. 713. But see contra, Cochran v. Street, 1 Wash. (VA) 79; Moffett v. Bowman, 6 Gratt. 219; State v. Robinson, 20 W.Va. 713; Wormley's Case, 8 Gratt. 712.
In the following cases, however, the affidavits of jurors were read in support of their verdict, though no rule, it seems, is laid down as to when such affidavits will be admitted. See generally, McCaul's Case, 1 Va. Cas. 271; Kennedy's CaseVa. Cas. 510; Overbee's Case, 1 Rob. 756; McCarter's Case, 11 Leigh 633; Thompson's Case, 8 Gratt. 637; Read's Case, 22 Gratt. 924; State v. Cartright, 20 W.Va. 32; State v. Robinson, 20 W.Va. 713.
IV. AMOUNT FOUND BY VERDICT.
A. EXCESSIVE. -- A verdict for $ 2,500, as compensation for a broken leg and much consequent suffering, will not be set aside as excessive, in the absence of evidence that the jury were actuated by improper motives, gross error, or misconception of the subject. Newport News, etc., R. Co. v. Bradford, 100 Va. 231, 40 S.E. 900. See N. & W. R. Co. v. Shott, 92 Va. 34, 22 S.E. 811; Young v. W.Va. & P. R. Co., 44 W.Va. 218, 28 S.E. 932; Trice v. C. & O. Ry. Co., 40 W.Va. 271, 21 S.E. 1022; Pegram v. Stortz, 31 W.Va. 220, 6 S.E. 485; Battrell v. Ohio River R. Co., 34 W.Va. 232, 12 S.E. 699; N. & W. R. Co. v. Nighbert, 46 W.Va. 202, 32 S.E. 1032; Moses v. Cromwell, 78 Va. 671 at 676.
Finding Less than Amount Claimed. -- And a verdict is not excessive which is not only supported by evidence in the case, but is for a less sum than that fixed by some of the witnesses. Barnes v. Morrison, 97 Va. 372, 34 S.E. 93.
B. CERTAINTY.
In Action of Debt. -- In an action of debt on a bond, with credits indorsed thereon, a verdict " for the debt in the declaration mentioned," is erroneous, though the plaintiff in court offer to release so much thereof as is equal to the credits endorsed on the bond. Grays v. Hines, 4 Munf. 437. And see Early v. Moore, 4 Munf. 262.
But, where there is a verdict for the debt claimed in the declaration, with interest, subject to a credit, specifying the sum, it is certain enough as to amount. Barrett v. Wills, 4 Leigh 114, distinguishing Grays v. Hines, 4 Munf. 437.
In Action of Assumpsit. -- In an action of assumpsit the declaration consisted of the common counts and three special counts, to which was demurrer overruled, genera lissue, plea of payments, with account, plea of set-off, with account and special plea in the nature of set-off. The verdict found for the plaintiff and assessed the amount of his damages, and also fixed the amount allowed the defendant on his set-offs, which was held free from confusion, so that proper judgment could be entered thereon. Smith v. Packard, 94 Va. 730, 27 S.E. 586.
In Action for Recovery of Personal Property. -- A verdict in an action for the recovery of personal property must find the value of the property, and of each article sued for, as in the action of detinue. White v. Emblem, 43 W.Va. 819, 28 S.E. 761.
V. RENDITION AND RECEPTION OF VERDICT.
A. IN CRIMINAL CASES. -- It has been uniformly held that it is absolutely necessary to a valid conviction that the prisoner shall be present in court when anything is done in his case in any way affecting his interests. State v. Greer, 22 W.Va. 800 at 811. See Sperry's Case, 9 Leigh 623; Hooker's Case, 13 Gratt. 763; Jackson v. Com., 19 Gratt. 656.
B. IN CIVIL CASES. -- Parties cannot, by their consent, authorize a jury to render their verdict to the clerk, in the absence of the judge, and be discharged. If a verdict is so rendered, and the jury discharged, it is no verdict. B. & O. R. R. Co. v. Polly, 14 Gratt. 447 at 449. But in M'Murray v. Oneal, 1 Call 246, it was held, if the agreement of parties that the jury may render privy verdict be substantially performed, it is sufficient.
VI. EFFECT OF THE GENERAL VERDICT.
A. GENERAL RULE. -- The verdict of a jury is entitled to great respect, and should not be set aside even by the trial court, unless plainly against the weight of the evidence. Humphreys' v. Valley R. Co., 100 Va. 749, 42 S.E. 882; Miller v. Ins. Co., 12 W.Va. 116; State v. Bowyer, 43 W.Va. 180, 27 S.E. 301; Miller v. White, 46 W.Va. 67, 33 S.E. 332; Whitehurst v. Com., 79 Va. 556 at 562; Jones v. C. & O. R. R. Co., 14 W.Va. 514.
And though the verdict be contrary to the instructions, yet, if there was no evidence to prove the case supposed by them, it will not be set aside. Smith v. Tate, 82 Va. 657.
1. ILLUSTRATION OF RULE.
a. In Civil Cases.
Determining Negligence of Parties. -- Where a case involving the determination of the negligence of defendant, and the contributory negligence of the plaintiff has been fairly submitted to the jury, under proper instructions, their verdict cannot be disturbed unless it is plainly in violation of the law, or is without evidence to support it. Newport News, etc., R. Co. v. Bradford, 100 Va. 231, 40 S.E. 900.
Recovery of Money on Rescinded Contract. -- And, in an action to recover back money paid on a contract which the plaintiff has treated as rescinded, the court will not set aside a verdict in favor of plaintiff, where the evidence shows that the conduct of defendant has been such as to amount to a rescission on his part, or to justify one on the part of plaintiff. Buena Vista Co. v. McCandlish, 92 Va. 297, 23 S.E. 781.
Where Instructions Are Inconsistent. -- Where two instructions are inconsistent with each other, the verdict will be set aside, as it is impossible to tell whether the jury was controlled by the one or the other. Va. & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S.E. 976. See Richmond Traction Co. v. Hilderbrand, 99 Va. 48, 34 S.E. 888.
Where Evidence Inconsistent. -- But, where the evidence is conflicting it cannot be said that, upon the whole case, no other verdict could have been found than that which was found. Va. & N. C. Wheel Co. v. Chalkley, 98 Va. 62, 34 S.E. 976.
b. In Criminal Cases.
Recommendation to Mercy. -- Where a verdict finds accused guilty of a crime, the added recommendation of the accused to the mercy of the court has no legal effect. State v. Newman, 49 W.Va. 724, 39 S.E. 655.
Conviction on One Count, Acquittal on Others. -- If there be three counts in an indictment, and the jury find a conviction on the second, saying nothing as to the other two, the accused stands acquitted on those two. Com. v. BennettVa. Cas. 235. See Hawley v. Com., 75 Va. 847.
(1) Curing Errors.
(a) In Civil Cases.
(aa) When Cured.
Want of Similiter. -- The want of a similiter shall not, after trial, vitiate the verdict. Brewer v. Tarpley, 1 Wash. (VA) 363.
Uncertainty in Allegations. -- Action on covenant, in which the plaintiff agreed to serve defendant for a year, in consideration of a certain part of the grain made on the plantation, oats excepted, a declaration charging " defendant did not, at the close of the year, pay plaintiff such part of the grain made on the plantation," if bad for not setting out what crop was made, the defect was cured by verdict. Laughlin v. Flood, 3 Munf. 255.
Failure to Allege Performance of Conditions. -- And a failure to allege the performance of a precedent condition will be cured by verdict. Bailey v. Clay, 4 346.
Omission to Lay Damages. -- And so, the verdict cures the omission to lay damages in the declaration. Stephens v. WhiteWash. (VA) 203.
Misjoinder of Issues. -- Where there is a misjoinder of issues, the defect will be cured by verdict. Moore v. Mauro, 4 488 at 490, overruling, it seems, Wilkinson v. Bennett, 3 Munf. 314. See also, Southside R. R. Co. v. Daniel, 20 Gratt. 344 at 360; White v. Clay, 7 Leigh 68; Mackey v. Fuqua, 3 Call 19; Boatright v. Meggs, 4 Munf. 145; Ray v. Clemens, 6 Leigh 600; Baylor v. B. & O. R. R. Co., 9 W.Va. 270; Sweeney v. Baker, 13 W.Va. 158 at 216; First Nat. Bank of Wellsburg v. Kimberland, 16 W.Va. 555; Walden v. PayneWash. (VA) 1.
(bb) When Not Cured.
Failure to Allege Consideration. -- Where the declaration does not allege a consideration, it is not such defect as may be cured by verdict. Moseley v. Jones, 5 Munf. 23.
Failure to Show Right of Action. -- And, where in an action of debt the declaration not only shows the plaintiffs have no right of action, but that such right is in another and there is a verdict for plaintiffs. Such verdict is unavailing to cure the error. Ross v. Milne, 12 Leigh 204.
Averring Gist of the Action. -- Nor will anything be presumed after verdict but what must have been necessarily proved from the matter stated in the declaration; therefore, total want of averment of a fact which constitutes the gist of the action will not be cured by the verdict. Chichester v. Vass, 1 Call 83.
Lack of Plea and Issue. -- And if there be no plea entered nor issue made up, the defect is fatal, and any verdict rendered in such case will be set aside. M'Million v. Dobbins, 9 Leigh 422. See Sydnor v. Burke, 4 161.
If All the Pleadings Faulty. -- So, too, if all the pleadings, including the declaration, be faulty, the verdict will not cure the defects. Link v. Walker, 1 Wash. (VA) 135; Stevens v. Taliaferro, 1 Wash. (VA) 155; Totty v. Donald, 4 Munf. 430.
Action on Assigned Bond. -- And, if in debt on an assigned bond the declarations do not allege a failure to pay the money to the obligee and to each of the assignees, as well as to plaintiff, only charging a failure to pay to plaintiff, the defect will not be cured by verdict. Braxton v. LipscombMunf. 282. See Buckner v. BlairMunf. 336; Green v. DulanyMunf. 518.
Action against Administrator for Fraud of Decedent. -- It is error to bring an action against the personal representative of a deceased vendor for the fraud and deceit of such vendor in a sale of a chattel to plaintiff, the cause of action having abated with the death of the vendor, and is not cured by verdict. Boyles' v. Overby, 11 Gratt. 202 at 203.
Suing Contrary to Directions of Statute. -- And where it is required that suit must be brought against the principal bank by its corporate name, it is error to sue the president and directors of a branch bank, and such error is not cured by verdict, founded on the general issue pleaded. Mason v. Farmers Bank, 12 Leigh 84; Tompkins v. Branch Bank, 11 Leigh 372.
(b) In Criminal Cases.
(aa) When Cured.
Verdict of Eleven Jurors, by Consent. -- See monographic note on " Juries" appended to Chahoon v. Com., 20 Gratt. 733.
Objection to Juror. -- An objection to a juror for incompetency is cured by verdict. Poindexter v. Com., 33 Gratt. 766.
Irregularity in Charge of Clerk. -- And, if there be irregularity in the charge of the clerk to the jury, it is cured by verdict. Rogers v. Com., 1 Va. Dec. 798.
In Indictment for Rape. -- So, too, if indictment for rape charges carnal knowledge of a female, instead of a woman child, the omission is cured by verdict. Com. v. BennettVa. Cas. 235. See Trimble v. Com.Va. Cas. 143; Com. v. ErvinVa. Cas. 337; Aldridge v. Com.Va. Cas. 447.
Indictment of Insurance Agent. -- And, if accused is indicted for keeping an office and doing business as agent for a named insurance company, and the indictment does not allege that the company is an insurance company, and for this the indictment is defective, such defect is cured by verdict. Slaughter v. Com., 13 Gratt. 767.
VII. CONSTRUCTION OF VERDICT.
A. GENERAL RULE. -- Verdicts of juries are to be favorably construed, and if the point in issue is substantially decided by the verdict, it is the duty of the court to mould it into form. Lewis v. Childers, 13 W.Va. 1 at 9. See M'Murray v. Oneal, 1 Call 246; Moody v. State, 1 W.Va. 337 at 340; Mann v. Bryant, 12 W.Va. 516 at 519; Peters v. Johnson, 50 W.Va. 644, 41 S.E. 190.
B. IN CIVIL CASES.
Pleas, Payment and Set-Off, Verdict for Gross Sum. -- In an action of assumpsit the defendant pleads payment and files set-offs exceeding the amount demanded by the plaintiff, whereupon the verdict finds for defendant simply a gross sum. Such verdict must be interpreted as a finding that the set-offs of the defendant exceeded the amount of plaintiff's claim by the sum found. Black v. Thomas, 21 W.Va. 709 at 711.
C. CRIMINAL CASES.
Malicious Shooting. -- On an indictment for malicious shooting one S., the verdict of the jury was, " we, the jury, find defendant not guilty of malicious shooting, as charged, but guilty of unlawful shooting, with intent, etc., and fix his term of confinement," etc. The verdict is to be read in connection with the indictment, and, therefore, sufficiently indicates the person shot. Hoback v. Com., 28 Gratt. 922. See Price v. Com., 77 Va. 393 at 394; Wolverton v. Com., 75 Va. 909 at 911; Canada v. Com., 22 Gratt. 899.
Taking No Notice of Some Charges. -- Where a verdict finds the accused guilty upon some of the counts in an indictment, saying nothing of others, judgment of acquittal should be entered on those counts of which the verdict takes no notice. Kirk v. Com., 9 Leigh 627. See Page v. Com., 9 Leigh 683.
Meaning of " Twelve Months." -- Where one is found guilty of a felony, and the jury fix his punishment at twelve months imprisonment, the term " twelve months" means one year. Vandewall v. Com.Va. Cas. 275.
VIII. AMENDMENT OF VERDICT.
A. GENERAL RULE. -- Where the verdict returned is not in form, it is proper that it be amended, in open court, but only as to matters of not substance. Porterfield's Case, 91 Va. 806, 22 S.E. 352; State v. Davis, 31 W.Va. 390, 7 S.E. 24; Com. v. GibsonVa. Cas. 70; Mills v. Com., 7 Leigh 751.
B. TIME OF AMENDMENT. -- And, so, the court may, for good reason, return a jury to its room to further consider and amend, or alter, its verdict, at any time before it is received by the court and the jury discharged. State v. Cobbs, 40 W.Va. 718, 22 S.E. 310. See Mills v. Com., 7 Leigh 751; Com. v. GibsonVa. Cas. 70; B. & O. R. Co. v. Polly, 14 Gratt. 447 at 449.
And it is held in Sledd v. Com., 19 Gratt. 813, that the jury may amend their verdict at any time before they are discharged.
C. RULE ILLUSTRATED.
1. Amendment by Court.
In Ejectment. -- In an action of ejectment the jury found " for the plaintiff one cent damages," which it was proper for the court to amend, so that it read, " we, the jury, find for the plaintiff the lands in the declaration mentioned, and one cent damages." McMurry v. Oneal, 1 Call 246. See Elliott v. Sutor, 3 W.Va. 37. Compare Low v. Settle, 22 W.Va. 387; Mann v. Bryant, 12 W.Va. 516 at 519; Paul v. Smiley, 4 Munf. 468.
In Writ of Right. -- And in a writ of right brought by several demandants the mise is joined on the mere right, and the jury find " for demandants," with the additional finding that " one of the demandants was dead before the institution of the suit, leaving children," which latter clause was held to be mere surplusage. Garrard v. Henry, 6 110. See Wells v. GarlandVa. Cas. 471; Martin v. Ohio River R. Co., 37 W.Va. 349, 16 S.E. 589.
2. Amendment by the Jury.
In Trial for Felony. -- On a trial of an indictment for a felony, it is proper to allow the jury to retire and amend their verdict. Fry v. Com., 82 Va. 334.
IX. SPECIAL VERDICT.
A. RULES GOVERNING. -- In a special verdict the jury ought not to find the evidence and submit to the court to say whether certain facts are to be inferred from it; but should find the facts explicitly, and submit to the court the questions of law arising thereupon. Henderson v. Allens, 1 Hen. & M. 235; Brown v. Ralston, 4 504; M'Lean v. Copper, 3 Call 367; Blanks v. Foushee, 4 Munf. 61.
And in Hall v. Ratliff, 93 Va. 327, 24 S.E. 1011, it is held, that, in a special verdict all the facts necessary to enable the court to determine whether or not the plaintiff is entitled to recover must be found with certainty. No facts can be inferred from those found. Where a verdict falls short of this it should be set aside. See Henderson v. Allens, 1 Hen. & M. 235.
1. Question Submitted Must Be Material. -- Also, in Bentley v. Standard Fire Ins. Co., 40 W.Va. 729, 23 S.E. 584, the court says, that a special question, unless material, should not be submitted to a jury. See Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W.Va. 155, 11 S.E. 1009.
Nor, as was held in Veith v. Hope Salt & Coal Co., 51 W.Va. 96, 41 S.E. 187, should two special questions covering the same enquiry be put to the jury, yet if one covering same matter of another be so drawn as to more definitely and pointedly inquire as to a particular matter controlling the case it should be given. See Pen. L. T. & M. Co. v. Franklin Ins. Co., 35 W.Va. 666, 14 S.E. 237; Bess v. C. & O. Ry. Co., 35 W.Va. 492, 14 S.E. 234.
And no material fact, not found expressly, or by very evident implication, in a special verdict, can be supplied by intendment. Tunnell v. WatsonMunf. 283.
Therefore, it is held to be an inflexible rule that the court, upon a special verdict, cannot infer other facts from those found. Stribbling v. Bank of the Valley, 5 132.
a. Exception. -- But in criminal and civil cases, when the intent is important to the decision of the case, the court may infer it from the facts found in a special verdict, though the intent be not found. Stribbling v. Bank of the Valley, 5 132 at 159.
2. Certainty of Finding.
a. The Rule. -- If a special verdict be so uncertain as that the court cannot say for whom judgment should be given, there ought to be a venire de novo, otherwise if the verdict be not uncertain, but it merely shows plaintiff's case, or his title, to be defective. Brown v. Ferguson, 4 Leigh 37.
And so in a special verdict, if the facts formed make a case upon which the court may render a judgment upon the merits, the verdict is not defective because other facts exist which might have been found, and which would have made a different case requiring a different judgment. Hunter v. Humphreys, 14 Gratt. 287. See Bolling v. Mayor, 3 563.
b. Rule Applied in Particular Instances.
(1) In Actions of Ejectment.
Verdict Aided by Clerk's Certificate. -- Where a special verdict finds that a person having an estate in land conveyed the same by deed of trust of a particular date, which deed it finds was duly recorded, and sets forth the same in haec verba which verdict, aided by the clerk's certificate as to the time of recordation, was sufficient. Pownal v. Taylor, 10 Leigh 172.
Statute of Limitations and Time Excluded. -- If a certain time has been by statute, excluded from the statutory period of twenty years, the special verdict must find that the defendant has had possession for the twenty years, exclusive of this time. Clay v. Ransome, 1 Munf. 454.
Ascertaining Time of Possession. -- And in an action of ejectment the verdict should find whether the defendant, or those under whom he claimed, had or had not such possession of the land as would be sufficient for his defense in that action, whatever might be the state of the title. Cropper v. Carlton, 6 Munf. 277.
Ascertaining Time of Death. -- So, too, in ejectment, the verdict should find the time of death of the person under whom the lessors of plaintiff might or might not have been entitled to the land in controversy, their title depending on the time of his death. Cropper v. Carlton, 6 Munf. 277.
Finding Livery of Seisin. -- In ejectment for a lot of land, the verdict should find, precisely, whether there was livery of seisin; barely finding the memorandum endorsed upon the deed is but evidence of the fact, and insufficient. M'Lean v. Copper, 3 Call 367. See Brown v. Ralston, 4 504; Henderson v. Allens, 1 Hen. & M. 235.
Recovery of Less than Sued for. -- A plaintiff in ejectment may recover less land than the quantity stated in his declaration; but if the jury find a special verdict, shewing the plaintiff entitled to a certain number of acres, part of the tract sued for, and do not specify the boundaries of such part, with such precision as that possession thereof may be delivered, such verdict is not sufficient. Clay v. White, 1 Munf. 162.
(2) In Writ of Right. -- A special verdict may be found in a writ of right. Shaw v. Clements, 1 Call 429. See Jones v. Jones, 1 Call 458 at 466; Bolling v. Mayor, 3 563.
What Verdict Must Find. -- But, a special verdict in writ of right, where the defense is the statute of limitations, must find either an actual disseisin or ouster of the demandants, or those under whom they claim, or facts which, in law, constitute such actual disseisin or ouster. Purcell v. Wilson, 4 Gratt. 16.
(3) Action on Protested Bill of Exchange. -- Where, in an action on a protested bill of exchange, the jury found " that the bill with three endorsements thereon, two of which were erased, was duly protested, and that notice thereof was given to defendants at a named date. If this be a reasonable notice, then the verdict is for plaintiff, others wise for defendant." The court held that it was " no objection to a verdict that enough is not found to answer the purpose of one of the parties, provided what is found be clearly stated," which was the case here. Stott v. Alexander, 1 Wash. (VA) 331.
(4) In Action on Bond. -- And, in an action on bond and plea of usury, it is sufficient if the special verdict find facts amounting to usury, though not directly finding the agreement was usurious. Gibson v. Fristoe, 1 Call 62.
(5) Fixing Liability for Assault. -- Also, finding in a special verdict that L and B were concerned in the same affray for which a judgment was rendered against B is a sufficient finding that L and B were jointly guilty of the same assault and battery. Wilkes v. JacksonHen. & M. 355.
(6) On Question of Fraud. -- And it is not necessary in a special verdict, that fraud be found expressly, eo nomine, if facts amounting to fraud, in legal construction, be found. Robertson v. Ewell, 3 Munf. 1.
(7) In Action for Rent. -- But, where in a proceeding to recover rent due upon a perpetual lease granted out of land, with right of distress and entry if the rent is not paid, a special verdict finding the entry of the grantee of the rent upon the land, and the holding by him and those claiming under him for forty-three years; but not finding that the original entry was under the right of entry given by the deed, or that the parties held adversely, nor any facts from which such an entry or such a possession results as a conclusion of law, is insufficient. Turner v. Smith, 18 Gratt. 830.
(8) In Action of Detinue. -- And, in an action of detinue for slaves, if the jury find a special verdict, and, as to some of the slaves, omit to state a circumstance which is necessary to ascertain whether the plaintiff is entitled to them or not, it is insufficient. Robinson's v. Brock, 1 Hen. & M. 212; Tunnell v. WatsonMunf. 283.
(9) In Action on Note. -- So, too, a verdict submitting to the court, for its judgment as to the law, certain documents and other evidence oral and written, without finding the facts established thereby, is too uncertain to found judgment upon. Blanks v. Foushee, 4 Munf. 61. See Henderson v. Allens, 1 Hen. & M. 235.
X. SUBJECT TO COURT'S OPINION.
A verdict may find generally for either party, dependent upon a single point of law presented to the court, although such verdict is not, strictly, a special verdict. McMichen v. Amos, 4 134 at 137. See James River & Kanawha Co. v. Adams, 17 Gratt. 427.
So, if in an action of waste, the verdict finds for the plaintiff and assess damages, but subject to the opinion of the court, whether, on the facts stated, the plaintiff can maintain the action, it is a general verdict. Dejarnatte v. Allen, 5 Gratt. 499 at 500. See McMichen v. Amos, 4 134 at 136.
And, on motion for a new trial on the ground that the verdict is contrary to law and evidence and the damages excessive, if the plaintiff release such part thereof as, in the court's opinion ought to be released, and thereupon judgment is entered for the residue, such judgment not appearing unreasonable, should be sustained. Preston v. Bowen, 6 Munf. 271. See James River & Kanawha Co. v. Adams, 17 Gratt. 427; Vinal v. Core, 18 W.Va. 1 at 62.
XI. DISCRETION AS TO NATURE OF VERDICT.
The jury has the discretion to say, when it finds a prisoner guilty of murder in the first degree, he shall be punished by imprisonment in the penitentiary. State v. Greer, 22 W.Va. 800 at 809.
[*]For monographic note on Verdict, see end of case.
[*]The President absent.