and to this, the inculpated juror is perfectly competent, the verdict will not be disturbed. As in the recent case of Ramadge v. Ryan,(1) a case of libel of the plaintiff, who was a physician, in a periodical journal called "The Lancet," in which he was denounced as upholding quackery. The plaintiff had brought an action against Wakley, the editor, and recovered one farthing damages. In the present case he had recovered £400. Taddy sought to obtain a rule, on the ground, that one of the jurors had come to the trial, predetermined to give heavy damages against the defendant, and read an affidavit of two members of the college of surgeons, who were present at the trial of the cause of Ramadge v. Wakley; that at the conclusion of that trial, a person, whose name was not then known to them, came up, and expressed his surprise, at the small amount of damages, and at the same time said, "I shall be on the jury to-morrow, and I will take care that the verdict does not go that way;" that one of the deponents then remarked, that the individual addressing them had not yet heard any evidence, to which the individual replied, that "he had heard quite enough, and that his mind was made up, as to the verdict he should give." For the plaintiff, cause was shown upon an affidavit, in which the expressions alleged to have been used by Hart, the juror, at his house, were altogether denied, and in which Hart explained the conversation in Westminster Hall, by deposing, that his words were, "Well! I am surprised at such small damages; had I been upon the jury I should certainly have given very heavy damages"-"I am upon the jury to-morrow;"--that no other words escaped him; and that he never said, "I will take care the verdict shall not go that way to-morrow." Tindal, Ch. J. "If the ground of application for a (1) 9 Bingham, 333. new trial, disclosed by the affidavits on the part of the defendant, had remained unanswered and uncontradicted, I should have thought the court justified in making this rule. absolute; for it would go to create a prejudice against trial by jury, if verdicts were to be the result of previous determination, and expressions, such as those imputed to the juror Hart. But the conversation, on the 31st of October, is denied altogether, as is also a portion of that alleged to have taken place on the 25th of June; and the effect of the residue appears to me, to be sufficiently answered by Hart's affidavit. This is not a case, therefore, in which the existence of such injustice has been established, as to call for a new trial." CHAPTER V. BY REASON OF A VOID VERDICT. It is a general rule, that if the finding of the jury be contrary to the record on the matter agreed to by the parties, or out of the issue, or of only part of the issue, or imperfect, uncertain, argumentative, repugnant, or variant from the declaration, it will be avoided, and a venire facias de novo or new trial will be awarded. 1. If the jury find contrary to the record, the verdict is void.(1) So the rule was laid down in Goddard's case,(2) which was this: Goddard, administrator, brought an action of debt upon a bond made to the intestate. The defendant pleaded that the intestate died before the date of the bond, and so concluded that the said writing was not his deed, upon which they were at issue. The jury found that the defendant did deliver it as his deed, and that he died before the date of the bond, and prayed the advice of the court, whether this was the defendant's deed; and it was adjudged by Anderson, Ch. Justice, Windham, Periam and Walmesly, that it was his deed. The reason of their judgment was, that although the obligee in pleading cannot allege the delivery before the date, because he is estopped to take an averment against any thing expressed in the deed, yet the jurors, who are sworn to say the truth, shall not be estopped, for an estoppel is to conclude one to say the truth; and therefore jurors cannot be estopped, because they are (1) 2 Rol, 691. (2) 2 Co. 4. sworn to say the truth. But if the estoppel or admittance be within the same record in which the issue is joined, upon which the jurors shall give their verdict, there they cannot find any thing against that which the parties have affirmed and admitted of record, although the truth be contrary; for the court may give judgment upon a thing confessed by the parties, and jurors are not to be charged with any such thing, but only with things in which the parties differ. The rule was afterwards recognised in Mackalley's case,(1) which was much debated on several points. One of which was, that the verdict was repugnant as finding a fact, both according to, and in opposition to the record, which was answered by the court. "The jury cannot find any thing against the record itself." The reason of the rule is, it is matter agreed on by the parties, which the jury cannot be permitted to disregard. This is well illustrated in the following case from Dyer.(2) The plaintiff declared in debt that he demised twenty-six acres of land to the defendant, and for rent arrear he brought the action. The defendant pleaded that the plaintiff leased the said twenty-six acres of land to him, and four acres more; without this, that he demised the twentysix acres only, upon which they were at issue. The verdict was, that the plaintiff demised only twenty-one acres, and whether the plaintiff should have judgment upon this verdict or not, was the question. Fitzherbert and Englefielde thought that the plaintiff should recover, for in that the verdict found that the plaintiff demised twenty-one acres only, it is a void verdict in this part; for it is admitted and confessed on the part of the defendant, that (1) 9 Ca. 69. (2) 1 Dyer, 32. twenty-six acres were demised as he declared; and they ought not to find contrary to what the parties have agreed. Their charge was no more, than whether the four acres more were leased, or not, and they have not found that the four acres more were deinised; therefore they have found against the defendant. Baldwin and Shelley, e contra. For the issue is found as well against the plaintiff as against the defendant; for the plaintiff has laid the cause of his action upon a lease of twenty-six acres, and upon that he intends to recover. But Shelley thought that if the issue and the plea had been well pleaded, the plaintiff might have recovered upon the verdict. But the plea is not good, because it is not necessary for the defendant to take a traverse in this case, inasmuch as he hath confessed it, and more, and then the traverse should come from the part of the plaintiff. Which opinion was afterwards affirmed by the court. So, in dower, if the tenant pleads always ready to render dower, and the issue is whether the husband died seised, the jury shall not inquire whether he was seised of an estate of which the wife was dowable, for this is confessed by the plea.(1) And in assize, if the tenant pleads that the demandant took the profits pendente lite, the jury cannot find that the tenant was not seized; for it is admitted by the plea.(2) So, if a tenant justifies for common and issue on the common found for the demandant; the jury cannot find that the tenant did not put in his cattle.(3) So, in an Anonymous case.(4) Assumpsit against two, and there was judgment by default against one of them; the other pleaded payment in satisfaction of the whole debt, but at the trial proved only payment of his share; (1) 3 Leon. 80. (3) 2 Rol. 692. (2) 2 Rol. 691. |