The opinion of the Court was delivered by
Sergeant, J.A verdict in the alternative would be erroneous.
But there are many instances, under our practice, in which a cautionary verdict is allowed; as when the verdict is rendered for the plaintiff in ejectment, or for a penal sum in actions for damages, to be enforced, unless the defendant pay a sum of money or does certain things specified. Here the verdict was within the latter description, for $7000, to be released, except $300 thereof on the defendants making their railroad in the middle of the street, at a specified depth, and taking up the existing railroad. The verdict, therefore, seems unobjectionable in form. But who is to judge whether the defendants have complied with the terms imposed by the verdict, and to mould the judgment accordingly? The court only can do this, in the exercise of a power over the process on summary application or motion, in which they are, for the most part, obliged to decide on affidavits and depositions whether the terms have been fulfilled or not: and these constitute no part of the record on which a writ of error lies to this court, nor do the reasons given by the court below. As this court, then, cannot look into the depositions taken, or the reasons of the court in order to ascertain whether the court below did right or not in rendering judgment, it is impossible for us to settle that dispute: and like the granting of a new trial, it is a matter which must rest in the sound discretion of the court below. The form of the judgment may be wrong, in rendering it for $300, instead of entering it for $7000, with a release of all but $300; but, substantially, the effect is the same. We are of opinion that the judgment be affirmed.
Judgment affirmed.