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Drawing lots, &c.

The verdict must, in all cases, be the result of reflection and deliberation; and if it appear that the jurors have drawn lots or thrown dice, or in any other manner suffered their decision to be determined by chance, the verdict will be set aside.22 But if the jurors agree upon a particular mode of arriving at a reasonable measure of damages, (as by dividing, by the number of jurors, the aggregate amount of what in the opinion of each juror, was a suitable sum,) without determining to abide by the contingent result, at all events, but reserving to themselves the liberty of dissenting; this will not vitiate the verdict.25

An objection, founded upon the misbehaviour of the jurors, should appear upon the postea, if the cause were tried at nisi prius, or upon the record, if were tried at bar; otherwise it will not be ground of staying judgment or bringing a writ of error, but of a motion for a new trial.24

22 15 Johns. Rep. 87. 4 Johns. Rep. 487. 3 Caines' Rep. 57. 1 Stra. 642. Com. Dig. Pleader, S. 45. 6 Bac. Abr. 657. 7 Bac. Abr. 12.

23 4 Johns. Rep. 487. 3 Caines' Rep. 61. 62. per Kent, Ch. J.

24

47 Bac. Abr. 13. Cro. Eliz. 616. Bull. N. P. 308. et vide 4 Cowen. Rep. 18.

SECTION V.

OF THE POSTEA AND RULE FOR JUDGMENT.

liver mi

It is provided by statute, that "when a verdict shall have been rendered in any circuit court, the clerk of the court, Clerk to deshall deliver to the attorney of the party in whose favour such nutes. &c. verdict was rendered, the circuit roll filed in the cause, and a certified copy of the minutes of the trial. If the plaintiff shall have been nonsuited, such roll and minutes shall be delivered to the attorney of the defendant. If any papers in the cause shall have been filed with the clerk, he shall annex a copy thereof to the said minutes, if required by the party to whom such minutes shall have been delivered."25

dorsed on

port.

From the minutes of the clerk, the attorney to whom they Postea énare delivered draws up the postea and endorses the same on roll; purthe circuit roll. The postea sets forth, that, afterwards, the parties, or the plaintiff only, if the inquest be taken by default, come by their attornies, and that the jurors also come and are chosen, tried and sworn, and that a verdict was rendered for one party or the other, or that the plaintiff was nonsuited.26

It is not necessary to enter the names of the jurors on the record, except where there has been a tales de circumstantibus.27

amended.

The postea, if erroneous, may, in general, be amended;101 May be and where the postea had been lost, the court ordered a new

25 R. St. P. 3. Ch. 7. T. 4. s.

72. Vol. 2. p. 422.

26 2 Dunlap. Pract. 673.

VOL. I.

27 Cro. Eliz. 281. ca. 1.

101 2 Tidd. Pract. 933. See post, sec. 6.

70

Rule nisi en-
tered in
term.

one to be made out from the record above, and the associate's notes.28

On filing the circuit roll and the copy of the minutes, the prevailing party may, on any day in term,29 enter a rule for judgment nisi, unless cause be shown to the contrary. This Expires in rule expires in four days, exclusive, as in other cases, of the day on which it was entered ;30 intermediate Sundays, it seems, not being included in the calculation.31 The rule must, in all cases, be entered in term ;32 but it does not seem necessary that it should be entered the next term after the verdict.ss

four days.

Judgment when signed.

The judgment having been entered on the roll, and the costs taxed, the party may, at the expiration of the four days, have his judgment signed.3

35

During the intermediate time limited by the rule for judgment, the plaintiff may move the court to set aside the nonsuit or verdict, and for a new trial, or for judgment, non obstante veredicto; so the defendant on his part may move for a new trial, or in arrest of judgment, or that a nonsuit be entered in his favour; and either party may move for a repleoder. In these cases, it is in general requisite to obtain an order to stay proceedings, to prevent the opposite party from proceedings. completing his judgment. But a judge's order for this purpose will not prevent a party from filing the postea, &c., and entering the rule for judgment ; nor is a bill of exceptions so far a stay of proceedings as to prevent the entry of this rule.37

Order to stay

.36

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Where no stay of proceedings has been previously obtained, the judgment is perfect after four days from the time of entering the rule, though the record be not filed, so that no order to stay proceedings can be granted by a single judge or commissioner:38 but where the practice on this head was mistaken by the attorney, the court set aside the proceedings and granted liberty to move for a new trial, on payment of costs.39

When judg

ment perfect.

Upon a special verdict, a party cannot take judgment of Special vercourse, but it must be on motion in court.40

dict.

SECTION VI.

OF THE DAMAGES.

when reco

Damages are a pecuniary compensation given by the jury What, and. for an injury,11 and may be recovered in all personal actions, verable. with the exception, perhaps, of actions upon statutes, by common informers for penalties.12

In most cases, damages are the sole object of the action; in some, however, they are merely nominal. In assumpsit, covenant, case, trover, and trespass, the damages are the sole object of the action: in debt, the damages are, in general, merely nominal, the recovery of the debt itself being the principal object of the action. When the plaintiff shows that he When nomi has sustained an injury in point of law, but proves no actual

43

nal.

333 Cowen. Rep. 354.

39 Ib.

40 3 Cowen. Rep. 367.

41 Co. Litt. 257. 2 Tidd. Pract.

42 Burr. Rep. 2018. 2489. 1 Archbd. Pract. 17. Vide R. St. P. 3. Ch. 8. T. 6. s. 2. Vol. 2. p. 480. 43 1 Archbd. Pract. 217.

Bond for payment of money.

Bond with other condi

tion.

Stipulated damages.

damage, he can only recover a nominal sum ; but such nominal sum must not be a fractional part of a cent, for no verdict or judgment can be rendered for less than one cent.45

Damages in debt and covenant.] In debt on a bond for

the payment of money, it is usual to give the plaintiff six cents

damages; and although, in general, he cannot recover beyond the penalty of the bond, yet interest has sometimes been allowed, even beyond the penalty. But, in general, the jury find first the matter of the issue, as upon nil debet, that the defendant owes to the plaintiff the amount of the debt proved," and the plaintiff enters up judgment for the penalty; on which judgment he cannot collect more than the condition of the bond, with interest and costs.48 On a judgment by default in debt, nominal damages are not given.19

Where there is a bond for any other condition than for the payment of money, the plaintiff must have the damages which he has actually sustained assessed by a jury; the cases and the manner in which this is done, we shall mention more particularly hereafter :50 and it seems that they cannot be assessed to an amount exceeding the penalty of the bond.51

Where the parties have stipulated for certain damages, that is, where they have fixed the precise sum which one party shall pay to the other, in case of non-performance, the jury are confined to the sum so agreed upon.5 52 The amount thus fixed is termed the liquidated or stipulated damages; and it

44 2 Dunlap. Pract. 657. 16 Johns. Rep. 254.

45 3 Caines' Rep. 81.

511 Campb. 78. 2 Bos. & Pull.

348.

But it seems that the party has an election to bring debt for

48 3 Caines' Rep. 48. et vide the penalty, or an action on the

W. Black. Rep. 395.

47 1 Archbd. Pract. 217.

48 See Post, Vol. 2.

49 4 Cowen. Rep. 67.
50 See post. Vol. 2.

covenant for the damages, and that in the latter case he may recover more than the penalty. 1 W. Black. Rep. 395.

52 2 Bac. Abr. 266. 4 Burr. Rep. 2225.

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