Lusk v. Hastings

By the Court,

Nelson, Ch. J.

I am satisfied that we cannot amend the verdict by the judge’s certificate. He certifies that the proof was applicable to the three counts, and that it would have justified a verdict upon the second count. The latter clause, I think, is carried beyond the province of a certificate ; it belonged to the jury to say whether the second count was supported by the evidence. As to the first branch of the certificate, that the proof was applicable to all the counts, how can we determine from this certificate that the damages given were confined to any particular count. In Knightly v. Beach, 2 Maule & Sel. 533, there was no difficulty in this respect, as there were distinct verdicts on each class of counts. In Eddowes v. Hopkins, 1 Douglas, 376, it clearly appeared that the evidence applied only to the count upon which the plaintiff asked judgment, and Buller, J. expressly put his decision upon that ground, saying that if there was any evidence which applied to the inconsistent count, the postea could not be amended. Such also is the principle of the cases of Williams v. Breeden, 1 Bos. & Pul. 330, and Harris v. Davis, 1 Chitty’s R. 619, n.

This case is not like one where the counts are consistent, although some be bad. In such case, if it appear that the evidence was applicable to the good as well as to the bad counts, there can be no harm in sustaining the verdict, though general. The good count is enough to warrant it; but in the case of inconsistent counts, we cannot say but that the verdict is compounded of damages under all the counts. Each class of counts is good, though inconsistent, and the jury may have taken into the estimate evidence that might support distinct and different actions. Suppose counts in case and assumpsit and evidence given applicable to both as certified by the judge here would it be pretended for a moment that a general verdict in such a case could stand. The misjoinder in the present case may not present the objection against amendment as strongly as in the case supposed, but it is the same in principle.

It is not usual to allow a venire de novo on a motion in arrest, and I do not perceive a sufficient reason, for making this case an exception.

Motion denied.