quest. Dickerson v. Kimball, 1 Code Rep., 83. Jones v. Russel, 3 Pr. R., 324. i Code Rep, 113. Sheldon v. Martin, I Code Rep., 81. Anderson v. Hough, 1 Code Rep., 50. 1 Sand. S. C. R., 271. And it was no good reason for dispensing with an affidavit of merits, that the answer was verified by affidavit. Ib.

Section 258,"clearly has no reference to a trial before a referee," per Johnson, J., in Holmes v. Slocum, 6 Pr. R. 219. See however, Williamson v. Sage, 1 Code Rep. N. S., 358, and rule 22 of the supreme court rules.

The amendment to this section seems, the adoption of the practice in equity, in accordance with which it was held, that if the defendants in the suit had not a

"his case," to counsel, fairly implies that he has stated the whole case, and is a sufficient compliance, in that particular, with the rule. Jordan v. Garrison, & Pr. R., 6. But an affidavit that he has stated his "defence" to counsel, only implies that he has stated one side of the case, and is. therefore insufficient. 22 Wendell, 636. 2 Hill., 359. Richards v. Swetzer, 1 Code Rep., 117. So, an affidavit that the defendant has fully and fairly stated "the facts of his case," &c., is insufficient. 1 Hill, 644. And an affidavit which alleged that the defendant had stated "his case in this cause," was held insufficient. Ellis v. Jones, 6 Pr. R., 296. Nor will it do to qualify the requisition of the rule, by adding, "so far as the facts have come to defendant's knowledge," unless a sufficient excuse be shown. 19 Wendell, 617. An affidavit that the defendant has a "defence, &c., to the plaintiff's declaration filed in this suit," &c, (1 How. S. T. R., 68), or "to the bond, &c.," or a defence in the action," without stating " on the merits," (4 Hill, 534; 5 Pr. R., 14), has been held bad. So, where the person described as counsel, in the affidavit, was not, in fact, a counsellor of this court, although an attorney, the affidavit was insufficient. 1 How. S. T. R., 74.

66

Where a maker and endorser of a note are sued in one action, an affidavit of merits by the maker will not prevent an inquest against the endorser, unless it appear that the defence of both is identical. 19 Wend., 125. And where several suits are brought against the maker and endorsers of the same note, an affidavit of merits to set aside an inquest in all the causes, may be made by the maker, if he be acquainted with the facts, and the defence be the same in all the causes. 6 Cowen, 395. Having drafted the affidavit, make two copies, and endorse them properly. Let one be sworn to, and filed in the office of the clerk of the circuit in which the cause is to be tried, and serve the other (with a notice endorsed, of the original being on file) upon the plaintiff's attorney, on or before the first day of the circuit. 15 Johns. R., 536. One affidavit of merits to prevent an inquest is sufficient, though the cause be several times noticed for trial and inquest. (6 Cowen, 45). And if filed, and served on a plaintiff's attorney, for a circuit in one county, it has been held sufficient, though the venue be afterwards changed to another county, and the cause be tried in the latter. Ib But an affidavit of merits, made and used for one purpose in a cause, cannot be used for another: e. g., an affidavit to change the venue will not be received as the foundation of a motion to set aside a default, for want of a plea. (2 Hill, 409). And a verified answer was held not to be sufficient to prevent the taking of an inquest in the cause at the circuit, out of its order on the calendar. Ib. 1 Code Rep., 81, 113. 1 How. Spe. T. R., 166. Under the former practice it was said that an affidavit to prevent an inquest sometimes might, and at other times should be served in a different manner from what is required in relation to other papers. At the circuit, if the plaintiff's attorney was not present, it might be delivered to the counsel having the cause in charge. If not delivered at the circuit, it should be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with the counsel before the inquest is taken. Accordingly, where the affidavit was served on the second day of the circuit, by leaving it at the office of the plaintiff's attorney, no one being in at the time, and he took the inquest a few moments afterwards, but without knowing that the affidavit had been served, his proceedings were held regular. 6 Hill, 368.

An inquest taken before the defendant's time to amend his answer expires, will be irregular if the defendant afterwards in good faith and in due time serves an amended answer. Washburn v. Herrick, 2 Code Rep., 2.

Where the defendant omitted to serve an affidavit of merits and did not appear, after the discharge of the jury the plaintiff took an inquest without a jury, and it was held to be irregular, and that it should have been taken before the jury were

common interest, or the defences set up by them were separate and distinct in their character, an issue might be awarded as to one defendant, although the case was not a proper one for an issue, as to his co-defendant. New-Orleans Gas Light Co. v. Dudley, 8 Paige, 452. And see, Meach v. Chappell, ib., 135. Germain v. Beach, 9 ib., 232. Sea Ins. Co. v. Day, ib., 369.

As to moving for judgment, as in case of a nonsuit, see section 274.

§ 259. [214.] (Amended 1851.)-Court to be furnished with copy, pleadings, &c.-When the issue shall be brought to trial by the plaintiff he shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.

Before amendment this section was as follows: The plaintiff shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant, if any shall have been made.

discharged. Dickinson v. Kimball, 1 Code Rep., 83. Hines v. Davis, 6 Pr. R., 118, 1 Code Rep., N S. 407.

A party who has taken an inquest regularly is not bound to waive it, he may put the adverse party to his motion. Smith v. Howard, 12 Wend., 198.

Where the cause is called in its order the defendant may appear and defend, although no affidavit of merits be filed. Starkweather v. Carswell, 1 Wend., 77.

An inquest may be taken on any day after the first day of the circuit, immediately after the opening of the court (Rule 12), but not after the trial of a litigated cause has commenced. Nichols v. Chapman, 9 Wend., 451.

Upon an inquest, the defendant has a right to appear, and cross examine the plaintiff's witnesses; but he cannot prove a defence by them, nor examine witnesses on his own behalf. He may, however, object to the plaintiff's evidence, and except to the judge's opinion as in ordinary cases. So the plaintiff may be nonsuited if he fail to make out his case. Willis v. Green, 1 Wend., 78. Hartness v. Boyd, 5 Ib., 563.

An inquest regularly taken will not be set aside, where it appears that the answer was insufficient or frivolous. Hunt v. Mails, 1 Code Rep., 118.

On setting aside a regular inquest, defendant was put under terms of withdrawing a plea of the statute of limitations. Fox v. Baker, 2 Wend., 244.

Where a cause is noticed for trial by both parties, the plaintiff need not, it is presumed, file an affidavit of a good cause of action to prevent the defendant moving the cause out of its order on the calendar, and taking a dismissal of the complaint. Regan v. Priest, 3 Denio, 163.

In an action against the several parties to a bill or note, jointly, under the act of April 25, 1832, if the trial was put off by any of such parties [or if one of them filed an affidavit of merits, 19 Wend., 125], the plaintiff might proceed to trial or inquest against the others, in the same manner as if the suit had been commenced against such other parties only, and the action was thereby severed. Laws of 1835, p. 248, s. 2. But unless the trial was so put off, the plaintiff was not at liberty to sever the action as between two defendants who had pleaded, and proceed to trial or inquest against one only. 4 Hill, 563. Nor can the action in any case be severed as to the joint makers of a note or bill, and judgment taken against one of them, without the other, whether they be sued jointly, with endorsers or not. Id. 35.

The plain: iff will also be allowed to sever the action after verdict, and proceed to judgment against one of the defendants, not being a joint contractor, when an obstacle is interposed by another defendant. See 19 Wend. 118.

See notes to section 252, 256 and 274 of this code.

§ 260. [215.] (Amended 1849.) General and special verdicts defined. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.

A special verdict must state the facts proved, not the evidence given to prove the facts. 5 Hill, 634; 4 ib., 171. And see Sisson v. Barrett, 2 Coms. 476.

It is an established rule that in deciding on special verdicts, the court cannot pass on any fact not stated or derivable from the facts appearing by such verdict. Williams v. Jackson, 5 Johus. R., 502.

§ 261. [216.] (Amended 1849.) When jury may render either general or special verdict, and when court may direct special finding. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, and if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention, or taking and withholding such property.

In every action for the recovery of money only, or specific real property, the jury in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes.

The provision of the revised statutes as to the form of the verdict in ejectment must be considered as modified by this section. If the plaintiffs collectively are entitled to the whole of the property claimed, then a general verdict for the recovery of the whole property would be sufficient. If only a moiety belonged to them, collectively, a general verdict for such moiety would be proper. Wood v. Staniels, 3 Code Rep., 152, 153.

In actions to recover the possession of personal property, and damages for its detention, a general verdict is proper :

1st. Where there has not been a delivery of the property to the plaintiff, and the answer does not deny the value of the property claimed to be as stated in the complaint;

2d. Where the property has been delivered to the plaintiff, and the answer does not claim a re-delivery. Archer v. Boudinet, 1 Code Rep. N. S., 372.

Where the value of property is stated in the complaint, and not denied by the

answer, the jury cannot with propriety find the value of the property to be other than that stated in the complaint. If in such a case the jury omit to pass on the value of the property, the court may decide on the value for the purpose of making an allowance in addition to costs.

1b.

The verdict should comprehend the whole issue or issues submitted to the jury, otherwise the judgment on the verdict will be subject to be reversed. 1 Ld. Raym. 324; 3 Salk., 372; 5 Ohio R., 227, 259. 6 ib., 521. 9 ib., 131. 21 Wend., 90, 19. 13 ib., 425. 6 ib., 272. 3 ib., 667.

In case of several issues the jury may find some for the plaintiff and some for the defendant. 1 Arch. Pr. 213. So in an action in form ex delicto against several defendants the jury may find one guilty and acquit another. 1 Cow., 322; 14 Johns. R. 166. 2 b. 382. As to a separate acquittal of one defendant in order to inake him a witness for his co-defendant, see 3 Hill, 104; 4 ib., 549. 6 ib., 583. 6 Ohio R. 144.

The jury can in no case give damages for an amount exceeding the amount claimed by the complaint, and it is the duty of the clerk if the jury find a verdict for greater damages, to enter it for the amount claimed merely. If, however, entered for more, the plaintiff may remit the excess. 5 Hill, 76; 4 M. & S., 94. Or the plaintiff may have leave to amend his complaint by increasing the amount of damages; but such an amendment will only be allowed on condition, that the plaintiff submit to a new trial if the defendant desires it. Corning v. Corning, 1 Code Rep., N. S., 351.

In actions of assumpsit, it is usual to calculate interest, and have it assessed by the jury as part of the plaintiff's damages; and interest is always allowed on promissory notes, bills of exchange, and goods sold at a specified credit; and generally, it is allowable by way of damages, in assessing damages for breach of a contract. 3 Wend., 356; 15 Johns. R., 24, 38; 1 Id., 315. It is recoverable on contracts for the payment of money, from the time the principal ought to have been paid, (7 Wend., 109; 20, Id., 51), and is is always properly chargeable where there is either an express or implied agreement to pay it. Savage, C. J., 7 Wend., 318. But interest is not recoverable on uncertain and unliquidated demands (1 Johns., R. 315, 6 Id. 45), and therefore, it is not allowable on an unliquidated account for work and labor (7 Wend., 178; 3 Cow., 393; 4 Id., 496), or goods sold and delivered (1d. 6 ; Id. 193), where no time is fixed for payment (Id.) unless there be an express agreement to allow interest, or unless there are circumstances from which such an agreement can be inferred. Id. 3; Id. 496, 3; Id. 393; 5 Id. 587; 6 Johns., R. 45. In actions of policies of insurance, where there is no doubt as to the amount of the loss, interest is allowed from the time of payment specified in the policy. 23 Wend., 525; 1 Johns. R., 315; 2 Hill, 589; 1 Id., 261.

In an action of debt on judgment, interest is recoverable from the time of its rendition, (3 Wend., 496), and as it seems, whether the original demand carried interest or not. See 22 Wend., 157. So it is recoverable in debt on judgment for a tort (3 Hill, 426), in which case it must be computed from the date of the judgment and not from the reudition of the verdict. Id.

In debt on bond, interest is not recoverable beyond the amount of the penalty, where the judgment has not been delayed on the part of the defendant. 1 Johns. R. 343; 3 Caines R., 48.

In covenant for a certain sum due for rent, and payable in money, interest is allowable. 4 Johns. R., 183.

In trespass for taking goods (8 Johns. R., 446), and in trover (Id. 2, Id. 280; 4 Cow., 53; 7 Wend., 354; 8 Id. 505), interest may be allowed on the value of the chattels, from the time of the trespass or conversion, by way of damages.

Where interest is improperly allowed, the verdict will not for that cause be set aside, but the plaintiff will be allowed to remit. 3 Wend., 525.

At common law, the damages are always single, but double and treble damages are, in some cases, given by statute. The jury may, in such cases, double and treble the damages themselves, and the court will intend that they have done so, u less the verdict be in terms for single damages. 1 Cow. 175. The proper course, however, is for the jury to find single damages only, and the court, then on motion, will double or treble them as the case may require. 1 Galison, 26, 479; 25 Wend., 420. If the court refuse to grant the motion, the plaintiff may bring error. Id. But to entitle the plaintiff to double or treble damages, the declaration must distinctly refer to the statute. 1 Cow., 175.

Where the defendants in trespass join in pleading, the jury, if they find them jointly guilty, cannot sever the damages. 5 Burr., 2790; 6 T. R. 189. So though they sever in pleading, or one suffer judgment by default, if there be but one trespass, and both are found guilty of the whole trespass. 6 Cow.; 313. But they may find one of them guilty of the trespass at one time, and another at another (11 Co. 5 b.), or one of them guilty of part of the trespass, and another of another (Cro. Car. 54), or some guilty of the whole trespass, and the others guilty of part only (Cro. El. 860.), in all which cases the jury may assess several damages. 1 Arch. Pr., 218. Also, where the defendants plead severally, if they be found guilty of the same act of trespass the jury cannot sever the damages. Cro. El. 860. 11 Co. 6 a, 7 a. 1 Arch. Pr. 219. Where the jury sever the damages by mistake the plaintiff may cure the defect by taking judgment de melioribus damnis against one, and entering a nolle prosequi as to the other (6 T. R. 199. 1 Wils. 306), or by entering a remittitur as to the lesser damages, he may have judgment for the greater damages against both. Cro. Car. 192. 1 Wils. 30. 1 Arch. Pr. 219.

Where there are separate suits against several joint trespassers, and the plaintiff recovers, he can have but one satisfaction. But he may assess the damages separately, and then elect de melioribus damnis, and recover costs against each. 8 Cow. 111.

Where default and interlocutory judgment have been previously entered in the action, as to one or more of several defendants, or as to one or more of several counts, and the jury find a verdict on the issue for the plaintiff, they must assess the damages for the whole, or against all the defendants. 6 Cow., 599; 11 Co., 5; 2 Bos. & Pul., 163, But where some of several defendants suffer a default, and those who plead to issue are acquitted at the trial, the jury shall, in some instances assess damages against those who have let judgment go by default, and in others not; the rule in such cases being, that where the plea of one of the defendants is such as shows that the plaintiff could have no cause of action against any of them (as payment of the plaintiff's demand), such plea shall operate or enure to the benefit of all, otherwise where the plea merely operates in discharge of the party pleading it. 10 Pick. 291. 2 Ld. Raym., 1372. 2 Stra., 1108, 1222. 2 Chitt. R., 135.

Where there are several counts, the jury may give entire damages, or they may sever them, and give damages on each count or on each class of counts. Arch. N. Prac., 283. If they give entire damages, and one count turns out to be bad, the defendant may move in arrest of judgment (2 Dougl., 730; 6 T. R., 691; 5 Johns. R., 435; 11 Id., 985), or bring a writ of error (Arch. N. Prac., 283; 9 Wend., 650), unless the error can be remedied by amendment. 1 Dougl., 376; 1 Bos. & Pul., 329; 1 Arch. Pr., 219.

Where there is an issue in law remaining to be argued in the action, the jury, where they find for the plaintiff, usually assess contingent (i. e., conditional) damages, to become absolute in case the demurrer shall be decided for the plaintiff. 2 Tidd's Pr., 778 (717). But where the issue in fact goes to the whole declaration, there is no necessity for an assessment of contingent damages. 19 Wend., 630.

After the jury have pronounced their verdict, they may alter and correct it, before it is received and recorded. And the court may also send them out again to reconsider their verdict, if it appears to be a mistaken one, before it is received. 7 Johns. R., 32.

The jury may also be polled at the instance of either party; that is, each juror may be separately examined as to his concurrence in the verdict; and then any of them may dissent from it (7 Johns. R., 32; 3 Cow., 23), in which case, the jury may be again sent out. 2 Wend., 352; 3 Johns. R., 255.

§ 262. [217.] On special finding with general verdict, former to control.—Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

§ 263. [218.] (Amended 1851.) Jury to assess defendant's damages in certain cases.--When a verdict is found for the plaintiff in an action for the recovery of money, or for the de