This was an action of assumpsit on three several promissory notes, executed by Frank Swick & Co., a firm composed of Swick, Smith and Cowan, as is averred in the declaration. Smith alone was served with process. He appeared and pleaded non-assumpsit, which he verified by affidavit under our statute. The pleadings admitted the execution of the notes by Frank Swick & Co., and the only question made on the trial, was whether Smith was a member of that firm, when the notes were executed. Upon this point, the testimony was conflicting, some witnesses swearing that he was, and others, that he was not. There was evidence sufficient to support a verdict either way, and as the jury have settled this conflict in favor of the plaintiff below, we shall not disturb the verdict.
When the jury first came into court, they offered a verdict for the plaintiff simply, without assessing the damages. This the court refused to receive, but sent them again to their room, with instructions to assess the plaintiff’s damages to the amount of the notes, calculating the interest at six per cent, per annum. They afterwards returned a verdict in accordance with this instruction. Of this action of the court, Smith complains, but we think without the least cause. It has often been settled, that if a verdict is returned which is defective, or informal, it is the duty of the court to send the jury back, with directions how the verdict should be made up. If there was any error in this instruction, it was in favor of Smith, for the notes on their face drew interest at three and a half per cent, per month, and the court, when there was no plea of usury interposed, instructed the jury to allow but half per cent, per month. Whatever error there was in this instruction was in favor of Smith, and he cannot complain. The judgment is affirmed.
Judgment affirmed.