Coffin v. Jones , 28 Mass. 45 ( 1831 )

Wilde J.

delivered the opinion of the Court. The plaintiff objects to the verdict as defective and not conformable tc the issues ; and to this objection two answers are given by the defendant’s counsel. The first is, that the defect is merely formal, the verdict being substantially good and decisive of the case. And if not so, then secondly, that the verdict may be now amended and set right according to the disclosure made by the foreman of the jury at the time the verdict was returned into court.

As to the first point, it is undoubtedly true that a mere formal defect in a verdict is immaterial. It is not necessary that it should follow the precise language of the issue ; but it must be responsive to it, and so expressed as to render it certain that the jury decided the. question or questions submitted to them ; and any uncertainty on this point is fatal.

Now we think it does not appear in the present case, that the jury were agreed as to any one of the issues, for they might have been divided in opinion as to each, and yet have agreed in the verdict returned. Some of the jury, for instance, might have been of opinion that the deed had not been executed by the defendant, or that it had been improperly altered, but that no payment had been made ; while others might be satisfied with the evidence of the execution of the deed, and also óf the payment. If the jury were thus divided in opinion, they could not agree on either of the issues, yet they would all agree that the defendant was not indebted. It cannot, therefore, ne ascertained by the terms of the verdict, that the jury were agreed as to any one of the issues ; so that the verdict is substantially defective and uncertain. The issues are not found directly nor by necessary implication.

Then can this verdict be amended ? It has long been the established practice in England to allow defective verdicts to be amended by me judge’s notes ; and this practice has been recently sanctioned by this Court in the case of Clark v. Lamb, 8 Pick. 415. The present case, however, does not come within that rule. Here the question is, whether the verdict can be altered so as to conform to the explanation made by the foreman of the jury. On a short examination I have found but one case, in which a verdict was allowed to be amended on the affidavit of the jury. This was allowed in the case of Mayo v. Archer, 1 Str. 514. It was, however, a very trifling amendment on a point which was afterwards adjudged to have been immaterial; and it was decided without much discussion. This case, and some other cases not reported, were referred to by Lord Mansfield in the case of Cogan v. Ebden, 1 Burr. 384, with apparent approbation. A rule to show cause was granted, but the matter was not again moved. Then followed the case of Spencer v. Goter, 1 H. Bl. 78 ; in which the court refused any such amendment, saying that the only remedy was a new trial. The same decision was made in the case of Jackson v. Williamson, 2 T. R. 281, which seems to have settled the English practice.

This was a strong case, and the mistake of the jury was clearly proved by the affidavit of all the jurors. It was an action against the sheriff for wrongfully seizing and selling the plaintiff’s lighter, the value of which was estimated by some of the witnesses at 60l. but it was sold for only 31l. The jury testified that they meant to give 30l. as damages over the 31l. for which the lighter had been sold, and that they supposed the prothonotary would of course add the 31Z. to the damages found by the jury. The plaintiff’s counsel were not in court when the verdict was delivered : but immediately after, learning the mistake, they applied to the court to suffer the verdict to be set right according to the intention of the jury. The defendant’s counsel did not suggest a doubt of the actual mistake, but they objected to the practice as highly dangerous and improper ; and the objection was sustained by the court. They say that such a practice would be productive of infinite mischief, and that it was better that a party should suffer an inconvenience, than that a rule so dangerous should be introduced. This case seems to us to have been decided on principles of sound policy. To. allow the jury to alter their verdict after delivering it into court, and after separating and conversing with either of the parties, would be opening the door to fraudulent practices, and if it would have no worse effect, it certainly would tend to impair the public confidence in the administration of justice. We think, therefore, the judge decided correctly in refusing to suffer the verdict to be altered, after it was returned into court; and for the reasons given, that it cannot be now amended.

As the case must be sent to a new trial, and as it has been long pending, I think it proper to suggest to counsel, that we doubt whether the evidence, as reported, is sufficient to support the plea of payment. The evidence does not seem to show payment in a technical sense, nor strictly the performance of the condition of the bond. It tends to show that the administration was agreed to be suspended or waived by the parties interested in the estate; that the personal estate was accordingly delivered over to the widow by their consent, and that the administrator was not in fault. If these facts were pleaded as an excuse for non-performance of the condition of the bond according to the letter, or as accord and satisfaction, the plea would probably be sustained if the facts amount to a legal defence. Of this however we give no decided opinion

Verdict set aside and new trial granted.