Little v. Larrabee

• Decision Date: 01 May 1822
• Citation: 2 Me. 37
• Parties: LITTLE v. LARRABEE
• Court: Maine Supreme Court

2 Me. 37

LITTLE v. LARRABEE

Supreme Judicial Court of Maine, Cumberland

May, 1822

THIS was a writ of entry in which the demandant counted upon his own seisin within thirty years and a disseisin by the tenant. At the trial, which was upon the issue of nul disseisin, the finding of the jury was, that the tenant did disseise the demandant in manner and form as alleged in the declaration which verdict was received and recorded by the Court, and the jurors separated.

After this the jurors discovered that they had misunderstood the legal terms in which they had drawn up their verdict, and that they had returned a verdict for the demandant, instead of one for the tenant, which last was their sole intention and they all made a joint affidavit stating these facts.

Verdict set aside and new trial granted.

And now Orr and Fessenden for the tenant moved that this affidavit of the jurors be received and placed on file, which the Court de bene esse, permitted: and thereupon they moved that the verdict and record be amended by the affidavit, by changing the finding to a verdict in favour of the tenant. They insisted on the right of the Court to amend the finding even without affidavit; and cited Edwards v. Hopkins, Doug. 376. Williams v. Bredon, 1 Bos. & Pul. 329. Jackson v. Dickinson, 15 Johns. 309. But they relied chiefly upon Cogan v. Ebden, 1 Burr. 383.

Whitman and Little, for the demandant, did not deny the existence of a remedy; but they contended that it was by setting aside the verdict, and not by amending it. 2 D. & E. 281. Apthorp v. Backus, Kirb. 407. Blackley v. Sheldon, 7 Johns. 32. Root v. Sherwood, 6 Johns. 68. Dana v. Tucker, 4 Johns. 487.

OPINION

MELLEN, C. J.

It appears by the defendant's motion and the affidavits of the jury, taken de bene esse in support of it, that they intended to return their verdict in favour of the tenant; although as written and signed by the foreman and affirmed by the Court, it is a plain and unequivocal verdict in favour of the demandants:--or, in other words, that they used language which did not convey their meaning.--This was not discovered till after the jury had separated and had an opportunity of conversing with the parties; by means of which the mistake was ascertained.

The questions are, whether the Court can permit the verdict so to be amended or altered as that it may stand a verdict in favour of the tenant; and, if not,--then what is the proper course to be pursued?

The decision of these questions depending on precedents, we have examined the authorities relating to the subject and will now state the result.

There are two classes of cases to be found in the books respecting erroneous or defective verdicts.

The first class contains those cases in which the incorrectness or defectiveness of the verdict or error in the record of the judgment consists in something merely formal and which has no connection with the merits of the cause; where the amendment, when made, in no respect impairs or changes the rights of the parties; but may only prevent the disturbance of the proceedings by writ of error; or, by correcting clerical mistakes, render the record consistent and the verdict pursuant to the issue.--Of this description are the following cases: 1 Salk. 47, 53. Cro. Car. 144, 338. Cro. Eliz. 677. Cro. Jac. 239. Cro. Eliz. 112. Lord Raym. 335. 2 Str. 1197. 4 Co. 52. 3 Bulstr. 181. Hett. 52. and numerous others which it is unnecessary to cite.

The second class contains those cases where the error has been committed by the jury; either by returning a verdict against the wrong party; or, if not so--for a larger or smaller sum than they intended: and those where, if the amendment or alteration should be made and the damage should be increased or diminished, or the verdict reversed, the rights of the parties would be immediately affected and changed: and this, too, after the jury had, by their separation, become accessible to the parties and subject to their influence.--Of this class are the following cases, viz.--

" A motion for a new trial upon affidavits of eleven of the jury that they had agreed on a verdict for the plaintiff and five shillings damage: but the foreman, by mistake, gave a verdict for the defendant. A new trial was granted." 21 Vin. Abr. 483 .

In Woodfall's case, 5 Burr. 2667, a doubt arose as to the meaning of the jury in the verdict they had given. Lord Mansfield says, " It is impossible to say with certainty what the jury really did mean:--probably they had different meanings. If they could possibly mean that, which, if expressed, would acquit...