Affidavits tending to impeach jury. [*131] *trial, disclosed by the affidavits on the part of the defendant had remained unanswered and uncontradicted, I should have thought the court justified in making this rule. absolute; for it would go to create a prejudice against trial by jury, if verdicts were to be the result of previous determination, and expressions such as those imputed to the juror Hart. But the conversation, on the 31st of October, is denied altogether, as is also a portion of that alleged to have taken place on the 25th of June; and the effect of the residue appears to me to be suffi ciently answered by Hart's affidavit. This is not a case, therefore, in which the existence of such injustice has been established, as to call for a new trial." Verdict contrary to the record. *CHAPTER V. BY REASON OF A VOID VERDICT. I. Verdict contrary to the record. V. Finding matter in the alternative. Ir is a general rule, that if the finding of the jury be contrary to the record on the matter agreed to by the parties, or out of the issue, or of only part of the issue, or imperfect, uncertain, argumentative, repugnant, or variant from the declaration, it will be avoided, and a venire facias de novo or new trial will be awarded. I. Verdict contrary to the record. If the jury find contrary to the record, the verdict is void.(1) So the rule was laid down in Goddard's case, (2) which was this: Goddard, administrator, brought an action of debt upon a bond made to the intestate. The defendant pleaded that the intestate died before the date of the bond, and so concluded that the said writing was not his deed, upon which they were at issue. The jury found that the defendant did deliver it as his deed, and that he died before the date of the bond, and prayed the advice of the court, whether this was the defendant's deed; and it was adjudged by Anderson, Ch. Justice, Windham, Periam and Walmesly, that it was his deed. The reason of their judgment was, that although the obligee in pleading cannot allege the delivery before the date, because he is estopped to take an averment against anything expressed in the deed, yet the jurors, who are sworn to say the truth, shall not be estopped, for an estoppel is (1) 2 Rol. 691. (2) 2 Co. 4. Verdict contrary to the record. to conclude one to say the truth; and therefore jurors [*133] cannot be estopped, because they are *sworn to say the truth. But if the estoppel or admittance be within the same record in which the issue is joined, upon which the jurors shall give their verdict, there they cannot find anything against that which the parties have affirmed and admitted of record, although the truth be contrary; for the court may give judg ment upon a thing confessed by the parties, and jurors are not to be charged with any such thing, but only with things in which the parties differ. The rule was afterwards recognized in Mackalley's case,(1) which was much debated on several points. One of which was, that the verdict was repugnant as finding a fact, both according to, and in opposition to the record, which was answered by the "The jury cannot find anything against the record itself." court. The reason of the rule is, it is matter agreed on by the parties, which the jury cannot be permitted to disregard. This is well illustrated in the following case from Dyer.(2) The plaintiff declared in debt that he demised twenty-six acres of land to the defendant, and for rent arrear he brought the action. The defendant pleaded that the plaintiff leased the said twenty-six acres of land to him, and four acres more; without this, that he demised the twenty-six acres only, upon which they were at issue. The verdict was, that the plaintiff demised only twenty-one acres, and whether the plaintiff should have judgment upon this verdict or not, was the question. Fitzherbert and Englefielde thought that the plaintiff should recover, for in that the verdict found that the plaintiff demised twenty-one acres only, it is a void verdict in this part; for it is admitted [*134] and confessed on the part of the defendant, that *twentysix acres were demised as he declared; and they ought (1) 9. Co. 69. Verdict contrary to the record. not to find contrary to what the parties have agreed. Their charge was no more, than whether the four acres more were leased, or not, and they have not found that the four acres more were demised; therefore they have found against the defendant. Baldwin and Shelley, e contra. For the issue is found as well against the plaintiff as against the defendant; for the plaintiff has laid the cause of his action upon a lease of twenty-six acres, and upon that he intends to recover. But Shelley thought that if the issue and the plea had been well pleaded, the plaintiff might have recovered upon the verdict. But the plea is not good, because it is not necessary for the defendant to take a traverse in this case, inasmuch as he hath confessed it, and more, and then the traverse should come from the part of the plaintiff. Which opinion was afterwards affirmed by the court. So, in dower, if the tenant pleads always ready to render dower, and the issue is whether the husband died seised, the jury shall not inquire whether he was seised of an estate of which the wife was dowable, for this is confessed by the plea.(1) And in assize, if the tenant pleads that the demandant took the profits pendente lite, the jury cannot find that the tenant was not seised; for it is admitted by the plea.(2) So, if a tenant justifies for common, and issue on the common found for the demandant; the jury cannot find that the tenant did not put in his cattle.(3) So, in an Anonymous case.(4) Assumpsit against two, and there was judgment by default against one of them; the other pleaded payment in satisfaction of the whole debt, but at the trial proved only payment of his share; *and per Holt, Ch. J. [*135] "If the jury find a discharge only as to this defend ant, they must find for the plaintiff, and so they must, though (1) 3 Leon, 80. (2) 2 Rol. 691. (3) 2 Rol. 692. (4) 3 Salk. 372. Finding matter not in the issue. they find the payment was for the whole debt; because the other defendant hath confessed the action, and the finding of the jury cannot discharge him, which was done accordingly, and small damages given." II. Finding matter not in the issue. If the verdict find a matter entirely out of the issue it is void.(1) Thus in Baker's case. (2) The plaintiff declared in case, that the defendant was indebted to W. R. in £40, who became a bankrupt, and that the commissioners assigned £40 to the plaintiff, whereby the defendant became indebted to the plaintiff in £40, and being so indebted promised to pay; and upon the evidence, the jury found the defendant was indebted to the bankrupt in £30 only, so that the sum of £40, for which the plaintiff had declared, was never assigned to him, nor promised to be paid. But adjudged, "that it was no worse in the plaintiff, than if the bankrupt himself, before he became bankrupt, had brought the action; and the difference is between an action on a promise in law, as in the principal case, and an action brought upon the contract itself; for, in the first case a mistake in the sum doth not hurt, but in the other case it doth." So, in an action on the case for words, upon not guilty pleaded, the jury found that the defendant non locutus est verba, &c., and adjudged ill.(3) The verdict ought to have pursued the issue, and for that reason it was held to be void. So, in trespass, upon not guilty pleaded, the jury found that the plaintiff non damnificatus fuit, and held ill, because [*136] *it doth not answer the plaintiff's charge.(4) So in assumpsit, and non assumpsit pleaded, the jury found, that the plaintiff was damnified £10 by the defendant's not per (1) Hob. 53. (2) Allen, 28. (3) Sid. 234. |