Gaither v. Wilmer

Miller, J., after stating the case as above reported, delivered the opinion of the Court. Without doubt,, a verdict, in an action like the present, simply “for the plaintiff,” without stating the damages, or the amount the plaintiff is entitled to recover, is fatally defective. It is not merely an informal verdict, which the Court can mould into projier shape by referring to the jdeadings and issues, but it is substantially defective. In all cases where the action is ujion a contract or for damages, the verdict, if for the jdaintiff, must be for an amount specified; otherwise the Court cannot enter judgment ujion it for any amount.

Profatt on Jury Trial, sec. 415; 2 Tidd’s Pr., 869; 1 Poe’s Pl. & Pr., sec. 758; Clement vs. Lewis, 3 Brod. & Bing., 297. The question, then, is, had the Court power to amend this verdict, and make it effective by inserting the amount the jdaintiff was entitled to recover, at the time and under the circumstances stated? The amendment was made after the verdict was assented to by the jury, when called ujion to hearken to it after it had been duly recorded, and several days after the jury had separated. The defect was discovered by the Judge when the ver ³⁶⁵ diet was handed to him before it was recorded, and when the jury were in attendance in open Court for the purpose of rendering their verdict.

It was then competent for the jury to reject this verdict in tofo, and find another, or to vary, or correct it. The Judge, also, could then have sent them to their room, with instructions to correct this defect, whether counsel assented or not; and this was the course that should have been adopted. Edelen vs. Thompson, 2 H. & G., 31 . This amendment, however, must have been made either upon the affidavit of the plaintiff’s counsel, or by the Judge’s own recollection of what took place at the trial.

In England, verdicts in criminal as well as in civil cases have been frequently amended by the notes of the Judge, or by some written document; and in a criminal case tried before Lord Deymay, C. J., he ordered the verdict to be amended, though he had taken no notes at the trial. But when this order was brought before the Court in banc, under a rule to show cause why it should not be rescinded, his Lordship said: “I was of opinion that the Judge must have power in a case like this to amend by his recollection ; and it is clear that in the present instance the amendment was one which might be made according to the truth of the facts. But on consideration we think that the practice of so amending would be such a dangerous one, that, as a general rule of discretion, the Court ought to decide against introducing it. In almost all the cases of amendment, there has been a written document, to amend by, anda misprision which was corrected by that.

But if reference is made to the recollection of the Judge as an individual, an unlimited number of affidavits from other persons will be let in, stating what passed according to their impressions. I have no doubt here; but on account of the great danger and abuse which might result from amending, under such circumstances, in cases which may be supposed, we think the ³⁶⁶ order ought not to be sustained.'” Reg. vs. Virrier, 12 Adol. & Ellis, 331. In this country, decisions as to the amendment oí verdicts are numerous, and a large number af them have been cited in argument. Some of them show that a general verdict may be applied to the proper count where some of the counts in the declaration are good, and others bad, or to one of two inconsistent counts; hut that is not this case.

Our Code provides that no judgment shall bo arrested because one or more counts in the declaration are bad, if there be one count sufficient in substance. (Gode, Art. 15, sec. 9.) But we have no statute which reaches a case like this. Again, in some of the cases cited, verdicts have been amended by re-assembling the jury after they had separated, and after the verdict had been recorded, upon the affidavits of the jurors themselves that they had made a mistake, or intended to find differently ; hut in States where the common law is the only guide on the subject, we think the decided weight of authority is against allowing such a thing to he done; and we have found