Argumentative verdict. Thus if the issue be that a copyhold granted for three lives is heriotable; and the jury find that there never was any such grant in that manor, for it is not found directly that it is not heriotable, but only by argument.(1) So, on an issue that by the custom a grant may be to three for the lives of two, a verdict that a grant for three lives is good, will be void, for it does not find the issue but upon the inference that, the grant of a less estate is good where the custom warrants a greater estate.(2) If the issue be, whether a copyhold may by custom be granted in tail, a verdict that it may be granted in fee is void. So, in debt, on a special plea non est factum, for that the bond was read as an acquittance. Verdict, that he is lettered, and knew it to be a bond, and gave it voluntarily, is not good, for it ought to find directly that it is his deed.(3) And if the defendant pleads solvit, and issue is thereon, a verdict that the defandant owes the money is not good, for it finds only by argument quod non solvit.(4) So, in trespass for taking and cutting his leather, the *defendant justifies as a searcher, &c., and that he in [*158] searching it, cut it more scrutatoris. The plaintiff re plies, of his own wrong absque hoc, that he cut it more scrutatoris ; verdict that he cut it of his own wrong is not good, for it does not find the issue but by argument.(5) In Shelley v. Alsop,(6) in an action on the case brought on a promise supposed to be made by the defendant, on non assumpsit pleaded, and tried in a base court in the town of Stafford, the jury found that the plaintiff, by non-performance of the promise ex parte of the defendant, had sustained damage 50s. and assessed costs and judgment accordingly, and upon error brought thereon, (1) 2 Rol. 693. (2) Ibid. (3) 3 Rol. 693. (4) Ibid. (5) 2 Rol. 694. (6) Yelv. 77. Argumentative verdict. it was reversed on the first motion, by Fenner, Yelverton and Williams: "for the verdict given by the manor is no verdict, for they have not found the matter in issue, with which they were charged, viz. whether the defendant assumpsit, necne; so it is altogether uncertain and imperfect. For this finding by the manner, that the plaintiff has sustained damage 50s. by non-performance of the promise, is but a finding of the assumpsit by a foreign implication, which is not good on any general issue, no more than in trespass on non cul. pleaded; the jury find that the plaintiff is damnified £5 by the entry of the defendant; this is not good, for they ought to give their verdict precisely accord ing to their charge." These authorities are recognized in a recent case in a sister state, in Gerrish v. Train. Trespass de bonis asportatis. Plea, that the property of the goods, at the time of taking, was in one Stevens, and not in the plaintiff; that the defendant was a de puty sheriff, and that he took the goods by virtue of a writ of attachment against Stevens, in favor of one Shattuck. Replication, that the defendant took the goods of his own wrong, tra versing the property's being in Stevens, and concluding [*159] with a verification. *Rejoinder, that the property was in Stevens, and concluding to the contrary, and issue joined thereon. Verdict, guilty, and the jury assessed damages. On motion for a new trial, on the ground that the verdict did not follow the issue, and was argumentative, a repleader was awarded; the court observing-"That the finding must be direct, and cannot be made good by inference. Thus if the defendant pleads solvit and issue is thereon. Verdict that the defendant owes the money, is not good, for it finds only by argument quod non solvit. So, in trespass, for taking and cutting leather, the defendant justifies, as a searcher of leather, &c.; and that in searching, he cut it more scrutatoris; the plaintiff replies of his own wrong absque hoc, that he cut it more scrutatoris; verdict that he cut it of his own wrong, is not good. In trover, on not guilty pleaded, the verdict was that the defendant converted the goods to his own Argumentative verdict. use; and this was held bad, though equivalent to a verdict of guilty, by necessary inference."(1) In Gramvel v. Rhobotham.(2) Action in trover. Plea, not guilty, and verdict for the plaintiff. Upon which error was brought, and plaintiff in error assigned, among other causes, because the issue being not guilty, and the jury not having found upon this issue, but only that the defendant detained and converted the goods to his own use, the verdict was void. And of that opinion was a majority of the court. But some of the justices were of opinion the verdict was amendable. And there is little doubt, in conformity to the modern practice, such an amendment would now be allowed. It has long been well settled, that the courts will give validity to verdicts when they perceive the substance of the issue to be contained in the verdict, however rude or informal *the [*160] finding of the jury may have been expressed. In the language of Ch. J. Hobart," the court will work the verdict into form, and make it serve."(3) For verdicts are to have a reasonable intendment, and to receive a reasonable construction, and are not to be avoided unless from necessity, originating in doubt of their import, or immateriality of the issue found, or their manifest tendency to work injustice.(4) (1) 3 Pick. 124. (2) Cro. Eliz. 865. (3) Vide Hob. 54; Co. Litt. 227; 2 Burr. 698; 5 Burr. 2662. (4) Vide 6 Com. Pleader, sec. 26, 30, 31, 32 and 33; 1 Chit. Arch. p. 310; Prac. 534, 536. Gra. General remarks. *CHAPTER VI. NEW TRIALS OCCASIONED BY ABSENCE, SURPRISE, OR MISTAKE. I. General remarks. II. Absence of party or counsel. III. Injustice done by fraud or accident. IV. Negligence will prevent relief. V. Honest mistake of party or counsel. VI. Ignorance or inadvertence will not be relieved. I. General Remarks. THERE are other causes, besides those already noticed, which, strictly speaking, do not enter into the merits, and yet deeply affect the result. The conduct of the party, his agents, and counsel, so far as it partakes of deceit, trick, or fraud, has been sufficiently adverted to, as well as the relief to which the adverse party is entitled by avoiding a verdict unfairly obtained. But there are other incidents connected with the conduct of the parties, apparently so unexceptionable, and yet so prejudicial to their rights, as to call for a similar relief. To have perfect justice done, it is necessary the parties and the counsel should carefully prepare for and duly attend upon the trial, and that the cause be conducted with knowledge, vigilance and skill in presenting the case, arranging the testimony, and improving the movements of the court and of the adverse counsel, to the advantage of the party. But it may sometimes happen, that the party and his counsel cannot attend, that when they do, notwithstanding all their vigilance, they may be taken by surprise, or suffer by mistake, or be misled by the suggestions of the court. And that by these and other occurrences, equally reconcilable with integrity and ability, their cause may be prejudiced and injustice done. To obviate this, when a clear case is presented, the courts will correct the evil, by setting aside the verdict. But they will as invariably refuse to interfere, where the cause suffers through the negligence of the party, or the inattention and incapacity Absence of party or counsel. of the counsel. This general principle may be distributed into minor rules with their *corresponding [*162] examples, illustrative of the modern practice granting new trials in cases of absence, surprise, or mistake, and refusing them by reason of negligence or mismanagement. II. Absence of party or counsel. When the party or his counsel are absent through misapprehension or necessity, and the cause goes to the jury undefended, and there are merits, the court will relieve by setting aside the verdict. In Rex v. Roberts, (1) the defendant having traversed an inquisition, whereby he was found to be a lunatic, the attorney-general filed the common replication; and it was sent from the pettybag office to the King's Bench. The prosecutor of the commission made up the record and carried it down to trial. Roberts, being ill, did not appear, and no defence was made, and the jury found in favor of the inquest. Upon this a new trial was moved for upon two points. The second point was upon the illness of Roberts, who could not attend, and which was made out by affidavits. The court thought it reasonable to grant a new trial for this, upon the foot of accident, and because the Lord Chancellor and the former jury had both had an inspection, which might be of great use to a second jury, who otherwise would be left to judge upon less evidence than the others had, and a new trial was granted. So in Ten Broeck v. Woolsey.(2) In scire facias, to revive two judgments, inquests had been taken. Motion to set them aside on affidavits, stating that the defendant lived at a great distance, had been discharged under the insolvent law, which fact was noticed under his plea. The attorney had written, urging him personally to attend, and was answered, that in conse quence of a fractured leg, he *could not travel, and wish- [*163] (1) 2 Str. 1208, and Mod. Cas. 22. (2) 3 Caines, 100. |