But when

jury may be polled, at the request of the party against whom it is, that is, the jury may be asked individually, whether they agree to the verdict, as it is read, and then either juror may disagree thereto.' The court, however, are not bound to poll the jury. they have given their verdict, and have affirmed it, it is beyond recall, and the jury are discharged of the No juror can then be allowed to say, that he will not agree to it, or that he agreed to it, upon mistaken principles ;* -nor can the affidavit of the jurors be read, to impeach their verdict."

case.

S

When the verdict has been thus returned, and affirmed, it is marked on the docket by the clerk, and is considered as then recorded, although the record of the case is not, in fact, made up, until afterwards.

SECT. III. VERDICTS.

Verdicts are of two kinds, general and special. The former, are where the jury find, that the defendant was "guilty," or "not guilty;". "did promise," or "did not promise," &c. The latter, are where they find a special statement of facts, and refer the question of law upon the facts, to the court.

1. Special verdicts. The right of the jury to return special verdicts, was introduced by Stat. West. 2.

1 Ibid. The People v. Denton, 2 Johns. Cas. 276. Vide Parrott et

al. v. Thacher et al. 9 Pick. Rep. 426.

2 Ropps v. Barker et al. 4 Pick. Rep. 239.

1 Keb. 416.

4 Bridge v. Eggleston, 14 Mass. Rep. 245.

› Dana v. Tucker, 4 Johns. Rep. 487. But vide Smith v. Cheetham, 3 Caines' Rep. 57.

Much formality is required in framing them;' but in our practice, they are seldom resorted to, as the same object is more easily obtained, by the jury finding a verdict, subject to the opinion of the court, upon the report of the evidence, by the judge who presides at the trial.

2. General verdicts. How framed. General verdicts ought to be framed, in the words of the issue tendered; but if they are not, the court will put them in form, according to the justice of the case, before they are affirmed, if the point in issue can be collected from the finding. Ꭶ

And the verdict should find the whole issue tried,^ and nothing more. If a jury should find facts not submitted to them, besides finding the issue, such improper finding will be rejected as surplusage," as if they should undertake to find costs for either party, with which subject, they have nothing to do."

It is the duty of the party, in whose favor the verdict is rendered, to see that it is put in regular form; and this is usually done at the bar, before the verdict is affirmed.

Return of the verdict, &c. The manner of returning, affirming, and recording the verdict, has been stated in the preceding section.

Where there are several counts in the declaration. If there be a general verdict, on a declaration containing several counts, the plaintiff may, at any time dur

2 Tidd's Pract. 798. Vide Walker v. Dewing et al. 8 Pick. Rep. 520. 2 Gerrish v. Train, 3 Pick. Rep. 124. Harding v. Brooks, 5 Pick. Rep. 244.

3 Porter v. Rummery, 10 Mass. Rep. 64.

43 Salk. 372, 374. Clark v. Lamb, 6 Pick. Rep. 512.

5 Bacon v. Callender, 6 Mass. Rep. 303.

Lincoln v. Hapgood et al. 11 Mass. Rep. 358.

ing the term, on motion, have leave to amend the verdict, and enter it on any count, on which the evidence by law, would, at the trial, have entitled him to recover, and may have leave to strike out of his declaration, any defective counts.'

The privilege secured to the plaintiff, by this rule, is an important one; for if any of his counts are defective, and he take a general verdict upon them all, it may be set aside.2

1 32d Rule C. C. Pleas. Appendix B.

1 Vide Hancock et al. v. Haywood, 3 Term. Rep. 433. Barnes et ux. v. Hurd, 11 Mass. Rep. 59.

CHAPTER XXIV.

DAMAGES.

Damages are a pecuniary compensation, given for an injury;1 and in most cases, in which they are recoverable at all, they are the sole object of the action.

In what actions recoverable. In real actions, no damages are recoverable, -the verdict of the jury simply determining, in some form or other, to which of the contending parties, the title to the demanded premises belongs.

But in all personal and mixed actions, damages may be recovered, with the exception of actions upon statutes for penalties. If, however, the plaintiff shew that he has sustained an injury in point of law only, but no actual damage, the jury may find a nominal sum merely.

Manner of assessing damages. At common law, upon a default, or upon a judgment on demurrer, the court may assess the damages, without the intervention of a jury, where there is any rule by which they may be ascertained. But where they are uncertain, a writ of inquiry is generally awarded.

In this Commonwealth,2 upon default made by the defendant, the court shall give such damages, as they shall find, upon inquiry, that the plaintiff has sustained, unless the plaintiff shall move to have a jury to inquire into the damages, in which case, the court shall

1 Co. Litt. 257.

2 Stat. 1784. ch. 28. s. 7.

enter up judgment for such damages, as the jury shall

assess.

And the same course, it is presumed, would be pursued, in case of a judgment upon demurrer. But notwithstanding this power, "the court generally refuses to assess the damages, in actions where the law has prescribed no rule by which they may be measured, but leaves them to the feelings of a jury."

Upon the trial of an issue of fact, it is, in all cases, the province of the jury, to assess the damages, and the assessment of them is part of their verdict.

Amount of damages. The amount of damages, in all personal actions, is solely within the discretion of the jury, except in those cases, where either by the agreement of the parties, or by the provisions of statute, the measure of damages is fixed.

Where there are several counts in the declaration. On a declaration containing several counts, the jury may assess, either entire damages upon the whole or a part of the declaration, or several damages on the different counts. It is safer, however, to have the damages severally assessed; because if a verdict be entered generally on all the counts, and entire damages given, if one or more of the counts be bad or inconsistent, the judgment may be arrested in toto,3 — while if the damages are severally assessed, judgment, if arrested at all, can be arrested only for so much as is defectively alleged, or upon which no action will lie,

1 Perry v. Goodwin, 6 Mass. Rep. 498. Vide further as to the assessment of damages, upon default, supra Chapter XXV. Sect. 1.

2

1 Rol. Abr. pl. 1.

3 Grant v. Astle, 2 Dougl. Rep. 722, 730. Cook v. Cox, 3 Maule and S. Rep. 110. Hopkins v. Beedle, 1 Caines' Rep. 347. Livingston v. Rogers, 1 Caines' Rep. 584.