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In England at common law they have four kinds of verdicts in civil cases : privy verdicts, public verdicts, general verdicts, and special verdicts.

3261. A privy verdict is one delivered privily to a judge out of court. A verdict of this kind is delivered to the judge after the jury have agreed for the convenience of the jury, who, after having given it, separate. This verdict is of no force whatever until it is afterward delivered in open court. From its liability to abuse, this practice, it is believed, has seldom if ever obtained in the United States. To relieve the jurors after they have agreed it is not unusual for the counsel to agree that the jury shall seal their verdict and then separate. The sealing of a verdict consists in putting the verdict in writing and putting it in an envelop, which is sealed. When the court is again in session, the jury come in and give their verdict in all respects as if it had not been sealed, and a juror may dissent from it if since the sealing he has honestly changed his mind.62

3262. A public verdict is one delivered in open court; this verdict when received has its full effect, and, unless set aside, is conclusive on the facts, and when a final judgment is rendered upon it bars all future controversies in personal action.

3263. A general verdict is one by which the jury pronounce at the same time in the terms of the issue on the fact and the law, either in favor of the plaintiff or defendant. The jury may find such a verdict whenever they deem it proper to do so, although the judge may direct them to find specially as to a particular fact on which a legal question may be raised. The verdict is general when it finds the facts and the law, as, for instance, that a certain sale took place; it is special when it finds certain facts, leaving it to the court to decide whether those facts constitute a sale.65

When the verdict is general and some of the counts in the plaintiff's declaration are bad, no judgment can be entered in favor of the plaintiff; 46 and if a judgment is entered by the court below on the counts which are supposed to be good, the supreme court will reverse it on error.67 But the rule that when one of several counts is bad no judgment can be entered on a general verdict does not apply to the case of a general verdict in favor of the defendant when some of his pleas are bad. 68

3264. A special verdict is one by which the facts of the case are put on record and the law is submitted to the judges. The jury have an option, instead of finding the affirmative or negative of the issue, as in a general verdict, to find all the facts disclosed by the evidence before them, and, after setting them forth, to conclude to the following effect : "that they are ignorant, in point of law, on

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Goodwin v. Appleton, 22 Me. 453 ; Dornick v. Richenback, 10 Serg. & R. Penn. 84. See McMurray v. O'Neil, 1 Call. Va. 246; Shamokin Coal Co. v. Milman, 3 Penn. St. 79. A verdict will be set aside if received by the judge out of court, and the jury is then discharged. Tuhe v. Eber, 19 Ind. 126; Kennedy v. Raught, 6 Minn. 235. But the court may adjourn to the chamber of a sick juror to receive the verdict. Litchfield Bank v. Church, 29 Conn. 137.

62 Sutliff v. Gilbert, 8 Ohio, 405; Riggs v. Cook, 9 Ill. 336; Beale v. Cunningham, 42 Me. 362; Blum v. Pate, 20 Cal. 69. A sealed verdict becomes part of the record only when delivered in open court. Rees v. Stille, 38 Penn. St. 138.

63 Coke, Litt. 228; Fitzer v. McCannan, 14 Wisc. 63. 64 Davizes v. Clark, 3 Ad. & E. 506. 65 Chidoteaus heirs , Dominiguez, 7 Mart. La. 521. 66 Wilson v. Gray, 8 Watts, Penn. 37. But judgment may be entered on the good count if both counts relate to the same cause of action. Aldrich v. Lyman, 6 R. I. 98. And it has been held that a general verdict will stand when part of the counts are good. Peoria Ins. Co. v. Whitehill, 25 Ill. 466; Indianapolis R. R. v. Taffe, 11 Ind. 458; State v. Pace, 9 Rich. So. C. 355. 67 Harker v. Orr, 8 Watts, Penn. 245. 68 Wilson v. Gray, 8 Watts, Penn. 37.

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which side they ought upon those facts to find the issue; that if upon the whole matter the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly and assess the damages at dollars : but if the court are of an opposite opinion, then they find for the defendant.” This form of finding is called a special verdict.

A special verdict must find the facts, and not merely the evidence of facts; it is upon the facts the court must pass their judgment what the law is, and they are not required to draw any inference." If it does not find the material facts in detail, it is deficient;and if defectively stated, it will not be aided by facts appearing elsewhere upon the record. 72

3265. In practice the jury have nothing to do with the formal preparation of the special verdict; when it is agreed that a verdict of that kind shall be given, the jury merely declare their opinion as to any fact remaining in doubt, and then the verdict is adjusted without their further interference. It is settled under the direction of the judge by the counsel and attorneys on either side, according to the state of the facts as found by the jury with respect to all particulars on which they have delivered an opinion, and with respect to other particulars, according to the state of the facts which it is agreed that they ought to find upon the evidence before them.73

The special verdict, when its form is thus settled, is, together with the whole proceedings on the trial, then entered on record, and the question of law arising on the facts found is argued before the court in banc, and decided by that court as in case of a demurrer. If either party be dissatisfied with their decision, he may afterward resort to a court of errors.

3266. There is another mode of finding a special verdict; this is when the jury find a verdict generally for the plaintiff, but subject, nevertheless, to the opinion of the judges or the court above on a special case stated by the counsel on both sides with regard to a matter of law.75

3267. A verdict must conform to the issue, and be certain.

3268. When there is but one issue, the verdict must conform to it, for that is the only thing to be tried and ascertained ; and when it does not conform to it, no judgment can be rendered upon it, because the matter to be'tried has not been found one way or the other ; 76 and a verdict is equally bad if it find only a part of the issue. The verdict must also negative all the pleas in the case, when found for the plaintiff.78

3269. When there are several issues, the verdict must conform to them all,79 but though it is a general rule that the jury must answer all the issues, yet, when it appears that all the questions of the case are settled by the verdict, that will be sufficient, and the verdict will not be set aside, unless the omission

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69 The jury may, unless otherwise directed, find either a general or special verdict, but upon the request of either party the court must direct a special verdict. Michigan Å. R. v. Bivens, 13 Ind. 263; Ruffing v. Tilton, 12 Ind. 259.

70 Lawrence v. Beaubion, 2 Bail. So. Č. 623; Brown v. Ralston, 4 Rand. Va. 504; Bertrand v. Morrison, 1 Ill. 175; Henderson v. Allen, 1 Hen. & M. Va. 235; Suydam v. Williamson, 20 How. 427.

11 Hann v. Field, Litt. Sel. Cas. Ky. 376; Leach v. Church, 10 Ohio, St. 148. 72 Lee v. Campbell, 13 Ala. 198.

73 And having been thus settled cannot be afterward changed. Dana v. Farrington, 4 Minn. 433.

Stephen, Pl. 113; 3 Sharswood, Blackst. Comm. 377; Bacon, Abr. Verdict, D, E; 1 Archbold, Pract. 189.

75 3 Sharswood, Blackst. Comm. 378; City Bank v. McChesney, 20 N. Y. 240.
76 Moody v. Keener, 16 Ala. 218; Parker v. Moore, 29 Mo. 218.
71 Patterson v. United States, 2 Wheat. 221; Barnett v. Watson; 1 Wash. C. C. 272.
78 Kilpatrick . S. W. Rail Road Bank, 6 Humphr. Tenn. 45.
79 Meighen v. Strong, 6 Minn. 177; Ronge v. Dawson, 9 Wisc. 246.

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to find the other issues prejudice the party complaining ; 8o and where there is a finding on one issue in favor of the plaintiff

, and no finding upon the others, the plaintiff may waive the other issues, or consent that a verdict as to them be entered against him.si

3270. Another requisite of a verdict is certainty, for it is obvious that if there be no certainty in the verdict, the court cannot give judgment : 82 thus, upon a libel for a breach of the revenue laws, the verdict found for the libellants, "the vessel, tackle, apparel, and cargo, except that part of the cargo on which the duties have beeu paid," was held to be too uncertain to give a judgment upon it.83 And in an action for freight and demurrage a verdict in these words,

we find for the plaintiff, and are of the opinion that the plaintiff has already received, out of property of the defendant, payment in full for the amount of freight to which he is entitled,” was set aside for uncertainty.S4 But a verdict will not be set aside for uncertainty as to matters not essential to the gist of the action if it find the material matter in issue with sufficient certainty ; * nor is mere surplusage sufficient to vitiate a verdict. 86

If it can be ascertained from the verdict given by the jury what their finding is, the court will put it in form ;97 as, where they found against some of the defendants only.88 When the amount is not in issue, a general verdict for the plaintiff not specifying the amount.is good.” So a verdict for the plaintiff for

the full amount claimed ” is good ;%' or for “the amount of the note and in

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terest."91

327. Until the verdict has been formally recorded and the jury have separated, they may amend their verdict; as, where the jury, through a misconception of the effect of legal terms, returned a verdict the very reverse of what they intended, the papers were again delivered to them by direction of the presiding judge, before they had separated and left their seats, and the judge explained to them the meaning of those terms, and they corrected their verdict, it was holden that this proceeding was correct. 92 But after the jury have been discharged and separated, they cannot be recalled to alter or amend their verdict.93

The proceedings on trial by jury at nisi prius or at bar terminate with the verdict.

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80 White v. Bailey, 4 Conn. 272. A verdict is good where the finding on some of the issues necessarily includes a finding on the others. White v. Bailey, 10 Mich. 155; O'Brien v. Hilburn, 22 Tex. 616.

81 Sutton v. Dana, 1 Metc. Mass. 383.

82 Stearn v. Barrett, 1 Mas. C. C. 153; Cheswell v. Chapman, 42 N. H. 47; Day v. Webb, 28 Conn. 140.

83 Richards v. Tabb, 4 Call, Va. 522.
84 Diehl v. Peters, 1 Serg. & R. Penn. 367.

Prejepscot Proprietors v. Nichols, 10 Me. 256. 86 Patterson v. United States, 2 Wheat. 1; Bacon v. Callender, 6 Mass. 303; Duane v. Simmons, 4 Yeates, Penn. 441; United States v. Stereoscopic Slides, 1 Sprague, Dist. Ct. 467.

87 Fromme v. Jones, 13 Iowa, 474; Chace v. Fall River, 2 All. Mass. 533; Jones v. Julian, 12 Ind. 274.

88 Chase v. Deming, 42 N. H. 274. 89 Warren v. Smith, 24 Tex. 484.

90 Newton v. Ker, 14 La. Ann. 704. Such a verdict is insufficient where the demand is unliquidated. Harrell v. Babb, 19 Tex. 148.

91 McGregor v. Armill, 2 Iowa, 30; Mitchell v. Addison, 20 Ga. 50.

93 Ward v. Bailey, 23 Me. 316. See The State v. Underwood, 2 Ala. N. s. 744; Beates v. Retallick, 23 Penn. St. 288. The court may amend the verdict in matter of form. Hampton v. Waterston, 14 La. Ann. 239; Corbett v. Gilbert, 24 Ga. 454; Russell v. Wheeler, 1 Hempst. C. C. 3; Truebody v. Jacobson, 2 Cal. 269. And a verdict for the plaintiff, giving no damages, was amended by adding nominal damages. Coit v. Waples, 1 Minn. 134. 93 Sargeant v. The State, 11 Ohio, 472; Walters v. Junkins, 16 Serg. & R. Penn. 414.

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CHAPTER XV.

PROCEEDINGS AFTER VERDICT. .

3273-3293. New trial.

3273. Nature of a new trial.
3274–3292. For what a new trial will be granted.
3274–3280. For matters arising before or in the course of trial.

3275. For want of notice.
3276. For irregularity in the impanelling of the jury.
3277. The improper admission and rejection of evidence.
3278. The misdirection of the judge.
3281. For wrongful acts of the successful party.
3282. For misconduct of the jurors.
3283. When the verdict is against law.

3284. When the verdict is against evidence.
3285–3288. For newly discovered evidence.

3286. The nature of newly discovered evidence.
3287. The nature of the discovery of new evidence.
3289. For surprise.
3290. For excessive damages.
3291. For inadequacy of damages.
3292. When a witness has been convicted of perjury.

3293. The practice on motions for new trial.
3294–3297. Arrest of judgment.

3296. Arrest of judgment for defects in the pleadings.
3297. Arrest of judgment for defects in the verdict.
3298. Judgment non obstante veredicto.
3299. Repleader.

3300. Venire facius de novo.
3301-3311. The judgment and its incidents.

3302. The form of judgments.
3303, 3304. The kinds of judgments.

3305. Judgments for the plaintiff.

3306. Judgments for the defendant.
3307-3310. Judgments rendered before issue.

3308. For the plaintiff.
3309. For the defendant.
3311. Where judgment ought to be given.

3272. After the trial the unsuccessful party may move the court to grant a new trial, or to arrest the judgment, or to give judgment non obstante veredicto, or to award a repleader, or to award a venire facias de novo.

3273. A new trial is a re-examination of an issue in fact before a court and jury, which had been tried at least once before the same court and a jury; or it is “a reinvestigation of the facts and legal rights of the parties upon disputed facts,” and either upon the same, or different, or additional evidence before a new jury, and probably, but not necessarily, before a different judge. The origin

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4 Chitty, Gen. Pr. 30.

and practice of granting new trials is concealed in the night of time; formerly they could be obtained only with the greatest difficulties, for it is a good principle of law that the decision of a jury upon an issue in fact is in general irreversible and conclusive. But by the modern practice they are more liberally granted in furtherance of justice. Still, it has been considered that the “important right of trial by jury requires that new trials should never be granted without solid and substantial reasons; otherwise, the province of jurymen might be often transferred to the judges, and they, instead of the jury, would become the real triers of the facts. A reasonable doubt merely, that justice has not been done, especially in cases where the value and importance of the cause is not great, appears to be too slender for them.”3

On the conclusion of a trial it sometimes happens that one of the parties is dissatisfied with the opinion expressed in the course of the trial by the judge who tried the cause, and which produced the result against him, whether it related to the effect or the admissibility of the evidence; or he may think the evidence against him insufficient in law when no adverse opinion has been expressed by the judge, and yet he may not have obtained a special verdict, or demurred to the evidence, or tendered a bill of exceptions. He is in such case at liberty to move the court in banc, or a single judge, in some cases, during the time prescribed by the rules of court, to grant a new trial on the ground of the judge having misdirected the jury, or having admitted or refused evidence contrary to law. He may apply for the same remedy in other cases when justice does not appear to have been done at the first trial; as, where the verdict, though not contrary to evidence or on insufficient ground in point of law, is manifestly wrong in point of direction, as contrary to the weight of evidence, and on that ground disapproved of by the judge who tried the cause ; or the new trial may be moved for where new evidence of a material fact has been discovered since the trial which the party did not know, and of course could not produce before the jury; or when the losing party has been taken by surprise, or in cases where the damages given are excessive, or the jury have misconducted themselves, or the parties attempted to bias the jury unlawfully; in these, and all other cases where it appears that injustice has been done, or might have happened, a new trial will be granted. These reasons may be classed as follows: matters which arose before or in the course of the trial, the acts of the prevailing party, the misconduct of the jury, cases where the verdict is improper because it is either against law or against evidence, the discovery of new evidence, because the losing party has been taken by surprise, because the damages are excessive, because the damages are inadequate, because the witness has since been convicted of perjury.

3274. The matters arising before or in the course of the trial for which a new trial

may be granted are want of notice, the irregular impanelling of the jury, the admission of illegal or the rejection of legal evidence, and the misdirection of the judge.

3275. The most obvious principles of justice require that a man should have a right to defend himself when attacked; that he should be allowed to explain his conduct when it is alleged he has violated the law either by not fulfilling his legal engagements or because he has committed a wrong, tort, or injury to another. Justice, therefore, requires that the defendant should have a sufficient

Formerly, the law provided one means of appeal from the verdict of a jury in certain cases, by writ of attaint; upon this there was a kind of new trial, by twenty-four jurors. This was applicable only in cases where the jury wilfully and knowingly gave a false verdict. This kind of proceeding is abolished even in England, and perhaps was never adopted in the United States. 3 Per Shippen, P. J. in Cowperthwaite v. Jones, 2 Dall. 56. Vol. II.2 M

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