Mirwan v. Ingersol

Headnote

Or} certiorari to a Justice’s Court; the plaintiff assigned errors ; and the defendant pleaded a special plea in bar, of accord and satisfaction, to which the plaintiff replied, taking issue. At the last Monroe Circuit, the cause coming on tobe ® tried, the Circuit Judge decided that the defendant held the affirmative. And, he net being ready with his proof, his counsel declined appearing, and the cause was called, and the jury impannelled as upon an inquest by default. While the counsel for the plaintiff was engaged in drawing a special verdict, the defendant’s witness appeared, and his counsel then asked leave to appear, and try the cause, stating that he could prove the truth of his plea. This was denied by the Judge ; and the plaintiff’s counsel hastily drew a special verdict in these words : “ And (he jury find that Thom7 , as Ingersol does not appear nor offer any evidence to prove the allegations contained in his plea.” This was received 0 r and entered as the verdict of the jury 5 and the plaintiff afterwards proceeded, without submitting the verdict to this Court, to tax his costs, perfect his judgment, and issue his execution.

an^Il¿5^eap° pear at the the Ujury aare nupannellcd £oi* nn miJtíSSü by default. ye^¡cí ing that the not^^appear, no:" anJ support of his Nea-.is a nu'-11" The plaintiff judgment,^0/ course, upon a special verdict, but it should í36 °“ an court»

A motion was now made, in behalf of the defendant, to set aside the verdict and all subsequent proceedings for irregularity, on these ground, among others, viz. L That the defendant should have been suffered to appear. 2. That the verdict was void. 3. That, at any rate, judgment could not be taken upon the verdict, without a special motion to this Court. And Com. Dig. pleader, (S. 21, 22) was cited ic shew the verdict void.