Jackson ex dem. Bradstreet v. Cannon — 2 Cow. 615

Majority

p. 615

Jackson, ex dem. Bradstreet, against Cannon.

Headnote

oco”‘ fidavit,’amend d¡ctpeci agreed upon by the onUrial.Wlt "

But if ^here appear to have been a mistake ®3 fact™y6either party, in vcrdi'ctf they )vl11 ordcr it to be vacated oi) payment of costs'

Ejectment. The parties had, without trial, agreed upon a special verdict; and the plaintiff had agreed to a certain deed, to _be produced by the defendant, and made a part of the verdict; and an entry according to the deed, material to the question upon the statute of limitations, which arose in the cause. The argument upon the verdict had been sev- ° 1 eral limes noticed by the plaintiff, and at the last October term, it was argued provisionally, that the defendant should produce the deed afterwards, for the examination of the Judges, as a part of the verdict. On its being produced, the lessor of the plaintiff discovered, as she alleged in her affida1 ° Tit, that the description in the deed was broader than she originally supposed, and that the admission of the entry according to this deed, was by mistake, and affidavits were

p. 616

read on both sides, tó the point of the alleged mistake; upon which,

A. Burr, for the plaintiff,

moved to amend -the. verdict according to the fact.

J. O. Hoffman, contra.

The verdict, was drawn up and agreed upon without trial. The affidavits are conflicting as to the extent of the entiy and claim, under this deed, which we perceive will be a material point of inquiry, in reference to the statute of limitations. The verdict being, by consent, an amendment upon this motion, is out, of the question. Wé amend these verdicts, where there has been a trial, upon which the facts have come -under the view of the Court and jury ; but in such cases, we have -something to amend by. Here there is nothing. We cannot settle this case between the parties. We must either refuse our interposition entirely, or send the cause to a jury; arid we are inclined to put the facts in a train for decision, by adopting the latter course. This cannot injure the defendant. His possession remains, in the mean time, undisturbed. The proceedings on his part have, to this moment, been perfectly regular; and we think the verdict should be set aside, on payment of all the costs by the píáintiff; that the cause should go to trial upon the facts disputed here ; and that the other facts stated in the verdict be taken as admitted.

Hoffman, suggested that as the proceeditig was amicable, it might well be, that several of the matters stated in the verdict, were conceded on the part of the defendant, in a spirit of compromise, and he might, under the new state of things, produced by this motion, deem it his interest to controvert them upon the- trial; and

in order to save the rights of the deféndaht in this particular, directed a

Rule : “ That "the special verdict be vacated, on payment by the plaintiff of all costs accrued since issue joined; and that such payment be within 30 days.”