to give them information and inftruction, with a view to induce them to alter their judgment. Verdicts are either general or fpecial. A general verdict muft find expressly, clearly and certainly, all the facts whith are put in iffue, or muft negate them all. It is not neceflary that the verdict fhould be in the very words of the ifue, but it must find or negate all the facts fubftantially, or it will be ill. A fpecial verdict is to find all the facts in the cafe, and fubmitting to the court the queftion of law arifing upon them. If the law be fo in fuch a point, then they find for the plaintiff with certain. damages to be exprefied, but if the law be otherwife, then for the defendant. A jury are never bound to find a special verdict, but may take it upon themselves to judge of the law, as well as the facts, but where the matter of law is obfcure, and they cannot clearly, and fafely give a pofitive verdict, they may find the facts fpecially, and the court will determine their legal operation.

CHAPTER TWENTY-FIRST.

OF MOTIONS IN ARREST AND REPLEADERS.

AFTER the verdict of the jury is recorded, judgment of courfe is rendered upon it by the court, unless the verdict be set aside and the judgment arrested or stayed, for causes next to be enumerated.

a

1. Judgment may be arrested for the infufficiency of the declaration. Tho the plaintiff has proved his declaration to be true, yet if he has not stated fuch facts as will entitle him to recover, and on which the court are warranted to render judgment, he must fail in his action. It is a general rule that the exceptions taken to a declaration under a motion in arreft, fhall be fuch as would have been fufficient on a demurrer; but that every exception which would have been good on a demurrer, will not be good under a motion in arreft; for there are many defects in a declaration which are aided and cured by verdict. It is a matter of considerable nicety to distinguish what exceptions can be taken advantage of under a motion in arreft, and what defects are aided by verdict.

3 Black. Com.

A

A defect in the declaration which is excepted to after verdict, ought to be material and fubftantial, and not matter of form, or fome circumstantial mistake. The defect must be in a point effential to the action, as where the plaintiff not only states his title in a defective manner, but fets forth a title which is wholly defective in itself. If from the facts ftated, it appears that the plaintiff has, no right of action, it may be taken advantage of in arreft. If the plaintiff brings his action for the defendant's calling him a Jew, or for fpeaking words not actionable, tho the jury find the defendant guilty of fpeaking the words, yet judgment must be arrested. But where it appears from the declaration, that the facts are of fuch a nature, that the plaintiff has right of action and that the declaration is defective merely in point of form, or there is an omiffion of fome particular circumstance which is effential to be proved to fupport the action, then fuch defect fhall be aided by verdict. If in an action of trefpafs, the declaration does not state the trefpafs to have been done on fome particular day, tho this would have been ill on demurrer, yet it is fufficient after verdict, because the court will intend that fufficient proof was offered to the jury of the facts, and the defendant fhall not be admitted to unravel the whole proceedings and take advantage of an omiffion which he might have done at an earlier ftage of the cafe. So in an action of trespass for taking away any article of perfonal property, if the plaintiff should not aver the value of it, this would be ill on demurrer, but cured by verdict; because the court will intend that the value of the article was proved to the fatisfaction of the jury.

In any other part of the pleadings which are defective, advantage may be taken by a motion in arreft, in the fame manner as to the declaration.

2. a Where the iffue found by the verdict is immaterial, judg ment may be arrested for if the fact put in iffue, is such that it does not decide the controversy between the parties, the verdict of a jury cannot aid it; but if the iffue be informal only, then it is cured by verdict. As where an action was brought against the defendant a juftice of the peace, for ifluing a writ of replevin, with out taking legal and fufficient bonds, he pleaded that the perfon recognized

Kirb. Rep. 139.

recognized to profecute the replevin was poffeffed of fufficient property in Hartford, on which iffue was taken and verdict for the plaintiff, but judgment was arrested because the iffue was immaterial; for tho it was found that the furety had not fufficient estate in Hartford, yet if he had elsewhere, it would have juftified the defendant, and this did not appear from the verdict.

3. • A verdict may be fet afide where it appears that the court have no jurifdiction. As where the declaration counted upon a promise to pay fixteen pounds twelve shillings, and demanded thirty pounds in damage, the verdict was fet afide in the fuperior court, because the matter in demand was below their jurisdiction.

4. A verdict may be set aside and judgment arrested on account of a defect in the verdict itself. A verdict ought to find or negate all the facts put in iflue. If it finds only a part, omitting fomething material, or if it varies from the iffue in point of fubstance, it is bad but if the verdict finds more than is put in iffue, this is furplufage, which will not vitiate it. The verdict must find the facts put in iffue with certainty and exprefsly, or it will be set aside.

Where the jury find a verdict contrary to a matter of record or eftoppel, or what is admitted by the pleadings, it is bad. A verdict cannot be fet afide, because the jury have found contrary to law or evidence; for by our practice they are so far confidered as being judges both of the law and the facts, that courts have not been admited to fet afide verdicts, because contrary to their opinion.

5. A verdict may be set aside for misbehaviour in the jurors, or in the parties. The jurors are to found their verdict upon the evidence given in court, and have a right to the papers, and exhibits adduced on trial; but if they admit any paper material or any evidence not given in court, their verdict is bad. So if they fend for and re-examine a witness improved on the trial, it vitiates the verdict. If they converse with either of the parties, or any other perfon upon the matters relating to the caufe on trial, or if they inform their opinion before the verdict is returned into court, their verdict must be fet afide.- Where a juror when the cafe was under confideration related to a perfon the whole ftate of the proof

a Kirb. 351. til. verdict.

on

b Bar. Abr. title verdict. c Kirb. 423. d4 Bac. Abr. Da vs. Roberts, S. C. 178).

a

on both fides, judgment was arrested; for the court faid, that the only guard upon jurors is their oath, and if they are allowed to leap over that bound, and enter into converfation with others upon the merits of the cafe, the purity of trials by jury, the great fountain of liberty and justice, may in time become corrupted. A verdict shall be fet afide where the jurors have recourfe to any matter of hazard, to decide which way they will find it, or what damages fhall be given. Thus where the jury being divided in opinion as to damages, agreed that each fhould mark on a piece of paper the fum he thought proper, and that fuch pieces of paper fhould be put in a hat or box, and that all the fums fhould be added together, divided by twelve, and that the product fhould be the rule in damages, the verdict was set aside on the principle that in trials nothing fhould be determined by chance.

Regularly the jurors must all agree in the verdict; but where any do not agree but affent to return it into court, because the rest will not agree with them, they shall not be admitted on a motion in arreft, to fay that they did not agree to the verdict.

d A verdict cannot be fet afide, because the jury have misapprehended the legal confequence of it; as where in an action of flander, fome of the jury agreed to a verdict for a fum in damages, under forty fhillings, on the idea that full coft would be given, this was adjudged infufficient to arrest the verdict. Nor can a verdict be fet afide, because the jury have found too high, or too low damages; for this is properly within their difcretion. If either of the parties treat or attempt to influence the jurors, or fupprefs any material paper or exhibit, given in evidence, or deliver to them a material paper not read in evidence, or excluded by the court, if the verdic be in his favour who has been guilty of fuch misconduct, it shall be fet afide.

In all cafes of motions in arreft, for any defect in the pleadings or in the verdict, the matter is apparent on the record: but where a motion in arreft is made for the misbehaviour of jurors and parties, the facts are not apparent on the record; the parties are therefore admitted to ftate fuch facts as the grounds of their motion, and if denied, the court will proceed to enquire of witnefies with refpect to their truth

• 2 Lev. 205. Bunb. 51. 416. d Idem, 212.

6 Warner vs. Robinson, S. C. 1790. Kirb,

truth, and if found true; or if the praties demur, they will render judgment according to the nature of the tranfaction. If the party denies the facts to be true, he need not traverfe; the court will enquire and find the facts, and render judgment accordingly, but it he acknowledges the the facts to be true, he may then demur. But it must be obferved that the mifbehaviour of jurors and parties are the only matters not apparent on the record, which are admitted in motions in arreft. Frequent attempts have been made to bring up on motions in arreft, the material facts and points in a caufe decided by the jury; but the courts have invariably adjudged, that after a general verdict, they cannot refort back to the evidence on which the verdict was founded, to fet it afide, but muft render judgment according to the facts found: tho they may be clearly of opinion that the verdict is repugnant to law and evidence.

a

A repleader is to be awarded in all inftances where the judgment is arrested from a defect that can be amended, or avoided : but where it is for a defect that cannot be cured, as the infufficiency of the declaration, no repleader can be ordered. Where the iffue was immaterial, a repleader will be ordered, because it may be fuppofed that a material fact may be put in iffue. So where judgment is arrested for fome defect in the verdict, or misbehaviour in the jurors or parties, a repleader will be ordered, and in all inftances of a repleader, the pleadings commence anew.

Where iffues in fact are put to the courts to determine, no motion in arreft can be made; for the court immediately upon finding the facts render judgment, and there is no intermediate time in which the party can move in arrest: but when the iffue is on trial by the court, they may take into confideration, not only the evidence with respect to the facts in contest, but also all matters apparent on the record which are proper grounds of arreft, and which might have been taken advantage of on motion after verdict, and render judgment according to law. In thefe cafes, let the proof be as it will, the iffue must be found in his favour who is entitled to a judgment upon the pleadings. If on the general iffue, every fact stated be proved, yet if the declaration be infufficient, the court must find the iffie in favour of the defendant; because the plaintiff is not entit led to a judgment, tho he has proved his allegations.

a Kirb. Rep. 61, 142. 273, 277.

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