Postley v. Mott

3 Denio 353

• Court: New York Supreme Court
• Decided: October 15, 1846
• Status: Published

Opinion

By the Court, Jewett, J.

The general rule is, that when one of several counts is bad, and a general verdict is rendered, the judgment will be arrested. (Gibbs v. Dewey, 5 Cowen, 503.) But if the record can be amended by the notes of the judge, so as to apply the verdict to the good counts, or if the defect be the result of a clerical mistake, or the like, in which case the court will amend it, the motion will be denied. (Stafford v. Green, 1 John. 505; Highland Turnpike Co. v. McKean, 11 id. 99; Cooper v. Bissell, 15 id. 318; Norris v. Durham, 9 Cowen, 151; Sayer v. Jewett, 13 Wend. 135; 3 R. S. 435, §7; The Union Turnpike Co. v. Jenkins, 1 Caines, 393; Hopkins v. Beedle, id. 347.)

The rule which prevails in the court of king’s bench, in England, in regard to amending a verdict by the notes of the judge, differs from that by which this court is governed. There, if there was any evidence which applied to the bad counts, the verdict cannot be amended. Here, if the evidence applies to the good counts solely, or will properly apply to such counts, as well as to the others, or if the evidence did not particularly apply to the bad count, the verdict may be amended. In Eddowes v. Hopkins, (Doug. 376,) Buller, J. said there was this distinction, that if there was only evidence at the trial upon such of the counts as were good and consistent, a general verdict might be altered from the notes of the judge, and entered only on those counts; but that, if there was any evidence which applied to the other bad ot inconsistent counts, then the postea could not be amended, because it would be impossible for the judge to say on which of the counts the jury had found the damages, or how they apportioned them; that in such a case the only remedy was by awarding a venire de novo. In that case a new venire was awarded on payment of costs, including those of the motion in arrest of judgment. The rule which has been invariably acted upon in this court, will be found exemplified in the cases which have been referred to. In the case under consideration, if the plaintiff’s evidence would properly apply as well to the first and sixth counts of the declaration, as to the second, as the general certificate states, it would be clear that the plaintiff would be entitled to leave to amend the verdict on payment of costs. But the circuit judge has, in another certificate, given a copy of the evidence of Solomon 0. Riley, by which it appears that that evidence could only apply to the second count, which is bad. I do hot see, in this state of the question, that the verdict can be amended, as it is impossible to say on which of the counts the jury have found the damages, or how they apportioned them. The judgment must therefore be arrested, unless the plaintiff will pay the costs of the circuit and of the motion in arrest. On the payment of those costs a venire de novo must issue.

Ordered accordingly.