Gover c. Turner

Nelson, J., delivered the opinion of this Court. In this case, the question submitted to the jury by the pleadings was, whether or not the plaintiff was deceived by the defendant in the sale of a piano. The jury found their verdict in the following words: “ We find for the plaintiff $189.56,” adding the words, “believing the plaintiff to have been misled by the catalogue.” Upon this finding the Court, in the presence of the jury, instructed the clerk to disregard ⁶⁰⁴ the latter words and record the verdict in dollars and cents, which was done. The jury were then called upon to harken to their verdict as the Court had recorded it, and they assented to the verdict as it was recorded.

If the jury had intended to find a special verdict and thus to submit any question of law to the Court, they had ample opportunity to say so, and to object to its alteration by the Court, for the jury may alter or change their verdict at any time before it is recorded; they made no objection, but assented to the verdict as it was recorded. It is insisted by the appellant’s counsel that the verdict as found by the jury was a special verdict, and that the Court erred in rejecting any part of it; that the Court was bound to receive the whole. If the verdict in this case could be considered a special one, the appellant would be right; the jury have the legal right to find a special verdict and submit any question of law to the Court; and if they think proper to do so, the Court cannot properly refuse to receive it. But was this what the law means by a special verdict?

We think it was not. A special verdict is where the jury find all the facts in the case, referring the law arising on such facts to the decision of the Court, and concluding conditionally, that if upon the whole facts found the Court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then they find for the defendant. They do not find the whole issue direct as in a general verdict, but leave it to depend upon the law as the Court shall determine 'it. “A special verdict,” says the author of “Trials per Pais,” “is where the jury find the matter at lai’ge, according to the evidence given, that such a thing is done by the defendant; and declaring the course of the fact, as in their opinion it is proved, pray the judgment of the Court as to what the law is in such a case.” — Trials per Pais, 279. Such was the verdict in Mahoney vs. Ashton, 4 Harris & McHenry, 210.

But where the jury find the whole issue submitted to them, referring nothing to the Court, it cannot be regarded a special verdict. Suppose ⁶⁰⁵ on an indictment for murder, (special verdicts may be found in criminal as well as in civil cases,) the jury should doubt whether the evidence was sufficient in law to sustain such a degree of malice as would justify them in finding the prisoner guilty in the first degree; in such a case they may find all the facts deposed to and refer the question of law to the Court; the ve'rdict would then be in abeyance until the Court should determine that question; this would be strictly a special verdict. But if that jury had found the prisoner guilty of murder in the first degree, and had added the words “ believing lie evinced malice aforethought by threats made previous to the killing,” this would be a