Semple v. Hailman

8 Ill. 131

Opinion

The Opinion of the Court was delivered by

Caton, J.

*

The judgment in this case must be reversed. The suit was brought on four different writings obligatory set forth in as many different counts in the declaration. Issues were joined upon pleas to all of these counts, and the cause submitted to the Court for trial by the agreement of the parties. The Court found the issues joined on the three first counts in favor of the plaintiffs below, found their debt and assessed their damages. There was no finding upon the fourth count. In this there is manifest error. In Miller v. Trets, 1 Lord Raym. 324, the issue joined was, whether the defendant was guilty of selling lace and silk. The jury found him guilty of selling lace, but said nothing of the silk. The Court held that the plaintiff could not amend, and the finding being insufficient, the judgment was reversed. In 2 Salk. 374, the Court hold that “a verdict which finds part only of the issues, is void as to the whole.” A verdict was set aside for the same cause in the case of Van Benthuysen v. De Witt, 4 Johns. 213.

In the case of Patterson v. The United States, 2 Wheat. 221, the Court say: “A verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue.” Numerous other authorities might be mentioned to show that the finding must be as broad as the issues, otherwise no judgment can be pronounced upon it, but it is unnecessary. The proposition is too clear to admit of doubt. It necessarily results from the nature of the case.

Questions were made upon various demurrers presented by either side, which do not seem to have been directly acted upon by the Court, but they were all waived by the subsequent pleadings of the parties.

An application was made by the defendants in error to discontinue, in this Court, as to their fourth count, but it cannot be allowed. The party cannot be permitted to amend his record here, so as to obviate the error which is well assigned. The case in 1 Lord Raym. above referred to is in point.

The judgment of the Circuit Court is reversed with costs, and the cause remanded, and a venire de novo awarded.

Judgment reversed.

Wilson, C. J. and Justices Lockwood and Young did not sit in this case.