John Den, ex dem. of John Smith & Peter W. Gautier, v. Jeremiah Norman,
From „lad
When no evidence is, off red on one of two counts in the declaration* and the verdict, by m.stake, is -nt -red generally upon both of" them, it may be corrected from the notes of the Judge.
Ejectment, tried before his Honor Judge Martin, on the last circuit. Oi> the trial, no evidence was offered tending to prove title in the lessor Smith — the en-quiry being solely directed to the title of Gautier. After the case was committed to the jury, and they had retired, his Honor left the bench, upon an agreement of the Counsel thai die verdict might be taken by the Clerk. During this reces-, thr jury returned, and the Clerk, by their directions, entered a general verdict for the Plaintiff, and were discharged.
The Defendant moved for a new trial, because the verdict was general, when no evidence of title in the lessor Smith was offered. The Plaintiff moved to correct the entry of the verdict, so as to render it responsive to each demise according to the evidence.
Bis Horro h< presiding Judge,being satisfied that the verdict wes according to tne justice of the case, and that the causi* had been tried wholly upon the. title of Gautier, directed the en*ry of tne verdict to be altered, so as to read not guilty, as to the count setting forth a demise from Smith, but guilty as to the other — which being done, and judgment rendered accordingly, the Defendant appealed..
*497
daston, for the Defendant.
No Counsel appeared for the Plaintiff.
Dec. 1830.
Ruffin, Judge.
The agreement of Counsel, stated in tiie record, ought surely to bind the parties to submit to any order of the Court, for putting the verdict <in4he. record, not only in a legal form, but in the proper form, according to the case proved on the trial. It must mean, that any inadvertence of the jury in returning, or slip of the Clerk in ent -ring a defective verdict, should be obviated by such a correction, by the parties themselves, or by the Court.
But it is not necessary to resort to that agreement, in justification of the course pursued by (he Court below. It is the constant practice to set. verdicts right from the notes of the Judge, as was done in this case. (Petrie v. Hannay, 5 T R. 659). No inconvenience can arise, and justice is often answered and costs saved by it. If a .Plaintiff offer no evidence, the Court ought to nonsuit, him. If lie declare in several counts, and offer no evidence upon some of them, but.prove others, and the jury find for him, unless the jury expressly specify llie counts on which the verdict is founded, the Court may, and does direct it to be entered up, on the count to which, llie evidence was applicable. If the evidence be not sufficient in law to sustain the verdict as entered, the De» lendant can spread the whole case on the record by an exception, and obtain the revision of this Court, as in other cases. He, is deprived of no right or proper privilege whatever.
Per Curiam. — Let the judgment of the Court below be affirmed.