At instance on which issues were joined.47 A nonsuit, it is said, can only of defend ant. When court will nonsuit trial. be at the instance of the defendant; and therefore, where the cause at nisi prius was called on, and jury sworn, but no counsel, attornies, parties or witnesses appeared on either side, the judge held, that the only way was to discharge the jury; for nobody has a right to demand the plaintiff but the defendant, and the defendant not demanding him, the judge could not order him to be called.48 But the plaintiff, it seems, may be nonsuited in an undefended action, if he do not make out a proper case, or for a variance, &c.49 And it has been held that a plaintiff has a right to submit to a nonsuit, on the coming in of a jury, although the jury are prepared to certify a balance in favour of the defendant, in an action of assumpsit, where notice of set-off has been given.50 51 If the judge at nisi prius, on motion for a nonsuit, reserve or grant new the point, the court, on the question heing brought before them, on a case made, may render judgment of nonsuit, if their de cision be against the plaintiff's right to recover. But it has been held in the king's bench, that where a legal objection is taken at the trial and overruled by the judge, without reserving the point, and the court are afterwards of opinion, that the objection was fatal to the plaintiff's right of recovery, they will grant a new trial only, and will not permit a nonsuit to be entered.52 47 10 East. 366. 48 Str. 267. 1117. 49 3 Taunt. Rep. 81. but see 2 Dunlap. Pract. 654. note. 50 2 Wendell. Rep. 295. 52 1 Barn. & Ald. 252. This case seems to have been decided on the ground that the plaintiff cannot be nonsuited against his consent, which rule we have seen 51 8 Johns. Rep. 436. and see does not prevail in this court. 3 Price. 54. SECTION IV. OF VERDICTS GENERAL AND SPECIAL, AND OF THE CONDUCT AND The verdict is either general or special. The jury have in all cases an undoubted right to find a general verdict;5 and it is provided by statute, that "no jury shall in any case be compelled to give a general verdict, so that they find a special verdict, showing the facts respecting which issue is joined, and therein require the judgment of the court upon such facts.”54 One method of finding a special verdict, formerly in use, was where the jury found a verdict generally for either party, subject nevertheless to the opinion of the court on a special case, containing all the evidence :55 but this practice is now abolished,56 and it is provided by rule, that "no verdict shall hereafter be taken, subject to the opinion of the supreme court, except where the parties shall agree on the facts proved, or where such facts shall be found by the jury." General verdict.] On a general verdict, if false, the jury were formerly liable to be attained ;57 and it was to relieve them from this difficulty, that it was provided by statute of Westm. 2, (the substance of which is contained in the provision above cited,) that they might find a special verdict.58 But attaints Attaints aboupon untrue verdicts are now abolished, and it is provided, that "for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, 53 1 Archb. Pract. 219. 56 Rule 36. See further, post, 54 R. St. P. 3. Ch. 7, T. 4. s. Vol. 2. 68. Vol. 2. p. 421. 55 Tidd. Pract. 929. 577 Bac. Abr. 3. Co. Litt. 228. a. lished. Requisites of verdict. except to indictment for corrupt conduct in rendering such verdict, in the cases provided by law."59 A general verdict is given vivâ voce by the jury; and is afterwards inserted in form, in what is termed the postea, and entered on the record :60 and if there be several counts in the declaration, it may be for the plaintiff on some, and for the defendant on others.61 A verdict must be certain, though certainty to a conimon intent is sufficient; it must conform to the issue joined between the parties,63 or at least must find the substance of it; it must not contradict the facts admitted by the parties on the record,65 and it must determine all the matters submitted or put in issue by the pleadings; for if the jury do not pass on any one of the issues joined, the judgment will be erroneous, unless Surplusage. the defect can be cured by entering a nolle prosequi.66 But if the jury find more than is contained in the issue, that excess will be rejected as surplusage.67 Verdicts public. There is no verdict of any force but a public verdict given openly in court ;68 but the jurors are allowed in civil cases, when the court has risen before they are agreed, to give a privy verdict, before any of the judges of the court, and the next morning in open court, they may either affirm or alter their privy verdict, and that which is given in court shall stand:69 or, which is the more usual course here, though it seems the practice is unknown in the English courts, the jury may with the consent of the parties, write down their verdict and seal it up, and then separate, and bring in their verdict at the next opening of the court.70 In either case the rule is well settled, that the jury, before it is recorded, may vary from the first offer of their verdict; and there are many cases, in the books, in which they have changed their verdict, immediately after they have pronounced it, and before it was received and entered:71 and the court may of its own accord send the jury back to re-consider their verdict, if it appears to be a mistaken one.72 Where a judge directs a jury to bring in a sealed verdict, Polling jury and gives them permission to separate after agreeing, if no objection is made by the parties to such direction, they will be deemed to have assented to it." After the jury have given their verdict, they may be polled; that is, each juror may be separately examined as to his concurrence in the verdict rendered, and then either of the jurors may disagree to the verdict.74 The jury may be polled at the instance of either party, whether the verdict be sealed or oral, any time before it is recorded.75 And where the verdict has been sealed by consent, it is not a matter of discretion with the judge to allow the jury to be polled, but if he refuse to do so, the verdict will be set aside.76 Where, on the jury's being polled, some of them dissent from the verdict, or where they come into court and declare that they cannot agree, the judge may send them out to deliberate further;" and after every reasonable endeavour has been used to obtain a verdict, if the court are satisfied that Discharging jury. the jury have made long and unavailing efforts to agree, and that they are so far exhausted as to be incapable of further de Calling plaintiff. Entry of verdict Nature and requisites. liberation, they may then be discharged." And it is provided by statute, that "when any jury shall be impannelled to try any issue, to make any inquiry, or to assess any damages, if they cannot agree, after being kept together for such time as shall be deemed reasonable by the court or officer before whom they shall have appeared and been impannelled, such court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case may require; and the same proceeding shall be had before such new jury as might have been had before the jury so discharged." 1179 We have before had occasion to remark, that previous to the rendering of the verdict, the plaintiff must be called to hear it; and that the judge has no authority to receive a verdict in his absence, unless with his express assent.101 If the jury has been impannelled before Sunday commences, their verdict may be received on that day.00 80 After the clerk has entered the verdict in his minutes, he reads the entry to the jury, that if he has made any mistake, it may be immediately corrected:81 if the verdict be taken down incorrectly, and contrary to the intention of the jury, a new trial will be granted; and the affidavits of the jurors are admissible to show the mistake.82 Special verdict.] A special verdict is where the jury find the facts of the case, leaving the ultimate decision of the cause, upon those facts, to the court. The jury state the naked facts as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter, the court shall be of opinion that the plaintiff 78 18 Johns. Rep. 203. 2 Johns. Cas. 301. Ib. 275. 79 R. St. P. 3. Ch. 8. T. 17. s. 26. Vol. 2. p. 554. 101 1 Wendell. Rep. 36. 80 15 Johns. Rep. 119. 179. 81 2 Dunlap. Pract. 651. 82 15 Johns. Rep. 317. 7 Bac. Abr. 13. sed vide 1 Price 1. 83 Boote's Suit at Law 158. |