Opinion
(December Term, 1830.)
When no evidence is offered on one or two counts in the declaration and the verdict, by mistake, is entered generally upon both of them, it may be corrected from the notes of the judge.
EJECTMENT, tried before his Honor, Judge MARTIN, on the last circuit. On the trial no evidence was offered tending to prove title in the lessor, Smith, the enquiry being solely directed to the title of Gautier. After the case was committed to the jury, and they had retired, his Honor left the bench, upon an agreement of the counsel that the verdict might be taken by the clerk. During this recess the jury returned and the clerk, by their directions, entered a general verdict for the plaintiff, and was discharged.
Gaston, for defendant. (497)
No counsel for plaintiff.
FROM BLADEN.
The defendant moved for a new trial, because the verdict was general, when no evidence of title in the lessor, Smith, was offered. The plaintiff moved to correct the entry of the verdict, so as to render it responsive to each demise according to the evidence.
His Honor, the presiding Judge, being satisfied that the verdict was according to the justice of the case, and that the cause had been tried wholly upon the title of Gautier, directed the entry of the verdict to be altered, so as to read not guilty, as to the count setting forth a demise from Smith, but guilty as to the other; which being done, and judgment rendered accordingly, the defendant appealed.
The agreement of counsel, stated in the record, ought surely to bind both parties to submit to any order of the Court for putting the verdict on the record, not only in legal form, but in the proper form, according to the case proved on the trial. It must mean that any inadvertence of the jury in returning, or slip of the clerk in entering a defective verdict, should be obviated by such a correction, by the parties themselves, or by the Court.
But it is not necessary to resort to that agreement in justification of the course pursued by the Court below. It is the constant practice to set verdicts right from the notes of the judge, as was done in this case. ( Petrie v. Hannay, 3 T. R., 659.) No inconvenience can arise, and justice is often answered and costs saved by it. If a plaintiff offer no evidence, the Court ought to nonsuit him. If he declare in several counts, and offer no evidence upon some of them, but prove others, and the jury find for him, unless the jury expressly specify the counts on which the verdict is founded, the Court may, and does direct it to be entered up, on the count to which the evidence was applicable. If the evidence be not sufficient in law to sustain the verdict as entered, the defendant can spread the whole case on the record by an exception and obtain the revision of this Court, as in other cases. He is deprived of no right or proper privilege whatever.
PER CURIAM. Affirmed.
(498)