#### WESTLEY CURTIS vs. JOHN SMART

An action for a joint battery and false imprisonment against four persond was tried. By agreement of counsel, the verdict, if agreed upon, was to be rendered during the adjournment of the Court. The jury returned d verdict, finding all the defendants guilty and assessing separate damages against each, and the Clerk entered the verdict accordingly. When the Court met after the adjournment, the jury, being informed they had done wrong, in assessing separate damages, were permitted to amend their verdict by finding damages against all the defendants jointly. Held, that the Judge below acted properly in permitting the amendment of the verdict.

Appeal from tho Superior Court of Law of Buncombe County, at the Fall Term 1848, his Honor Judge Manly presiding.

This action was against four for a joint battery and false imprisonment; and, after the jury retired, it was •agreed by the counsel on each side, that the Court might be adjourned till the next day, and that, when the jury should be agreed, the Clerk might enter the verdict in the absence of the Judge and the counsel The jury accordingly informed the Clerk, that they found for the plaintiff and assessed his damages to thirty-five dollars against each of the defendants, and the Clerk so entered-it as their verdict, and the jury then separated. The next morning, the entry was read to the Court and jury, and the presiding Judge informed the jury, that it was not usual to assess the damages severalty, and requested them to assess against the defendants,.jointly, such damages as they thought the plaintiff .entitled to recover in the whole. The jury, thereupon, consulted together, and assessed the damages against all the cle(enclants to one *98hundred and fifty dollars, and the verdict was amended accordingly. Judgment being rendered upon this verdict, the defendants appealed.

N. W. Woodjin and Gaither, for the plaintiff.

Avery and Bynum, for the defendants.

Ruffijí, C. J.

The Court is of opinion that his Honor did perfectly right. The verdict, as first rendered, would have authorized a judgment de melioribus damnis; and one against each of'the defendants for the several sums against them would have been enormous Sabin v. Long, 1 Wilson’s Rep. 30, Hill v. Goodchild, Bur. 2791. If the Judge lmd been in Court, when the jury first came in, he would no doubt, have informed them, as he ought, of those points of la w, so as to let them know, that, for a joint trespass, it was the duty of the jury to assess damages jointly against all the trespassers to the full amount sustained by the plaintiff, lie did no more as the case actually was; and there was no improper alteration of the verdict. The truth is, there was, technically, no verdict, until the jury rendered it in Court on the morning after the trial. It was not a privy verdict, because it was not rendered to the Judge out of Court. But, even if it had been, the jury had the right to reconsider and affirm or disaffirm it in open Court. 3 Comm 377. Much more could they vary from an imperfect verdict like this ; and, especially, to make it formally, what it is evident it was intended substantially to be, and, legally, ought to have been. But, no doubt, the proper view of the matter is, to regard this as a public verdict, not because it was really so, but because the parties agreed, that it should be entered after the adjournment of the Court, as if it had been rendered and entered before the Court adjourned — ■ nunc pro tunc. Then, the defendants say, the Clerk was made the substitute of the Judge, and, consequently, the *99verdict entered before the Clerk cannot be altered. But that is not to be so considered at all. The Clerk was not tobe, and could not be, the substitute of the Judge ; but he was merely Clerk, with the duty of entering the verdict truly, as expressed by the jury. Therefore the fair meaning to be put on the agreement of the parties is, that the verdict, if given while the Court was adjourned, should finally, if it were not so done at first, be so expressed, as to make it a valid verdict and conformable to the substance and legal effect intended by the jury. We should, therefore, have approved, without hesitation, of the amendment in this verdict, if it had been made by the presiding Judge, without consulting the jury. But the change was made by the jurors themselves, under the advice and leave of the Judge, in furtherance of justice, and, as we conceive, there can be no solid objection to it.

Per Curiam.

Judgment affirmed.