Gover c. Turner

Nelson, J.,

delivered the opinion of this Court.

In this case, the question submitted to the jury by the pleadings was, whether or not the plaintiff was deceived by the defendant in the sale of a piano. The jury found their verdict in the following words: “ We find for the plaintiff $189.56,” adding the words, “believing the plaintiff to have been misled by the catalogue.” Upon this finding the Court, in the presence of the jury, instructed the clerk to disregard *604 the latter words and record the verdict in dollars and cents, which was done. The jury were then called upon to harken to their verdict as the Court had recorded it, and they assented to the verdict as it was recorded. If the jury had intended to find a special verdict and thus to submit any question of law to the Court, they had ample opportunity to say so, and to object to its alteration by the Court, for the jury may alter or change their verdict at any time before it is recorded; they made no objection, but assented to the verdict as it was recorded.

It is insisted by the appellant’s counsel that the verdict as found by the jury was a special verdict, and that the Court erred in rejecting any part of it; that the Court was bound to receive the whole. If the verdict in this case could be considered a special one, the appellant would be right; the jury have the legal right to find a special verdict and submit any question of law to the Court; and if they think proper to do so, the Court cannot properly refuse to receive it. But was this what the law means by a special verdict? We think it was not. A special verdict is where the jury find all the facts in the case, referring the law arising on such facts to the decision of the Court, and concluding conditionally, that if upon the whole facts found the Court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then they find for the defendant. They do not find the whole issue direct as in a general verdict, but leave it to depend upon the law as the Court shall determine 'it. “A special verdict,” says the author of “Trials per Pais,” “is where the jury find the matter at lai’ge, according to the evidence given, that such a thing is done by the defendant; and declaring the course of the fact, as in their opinion it is proved, pray the judgment of the Court as to what the law is in such a case.” — Trials per Pais, 279. Such was the verdict in Mahoney vs. Ashton, 4 Harris & McHenry, 210. But where the jury find the whole issue submitted to them, referring nothing to the Court, it cannot be regarded a special verdict. Suppose *605 on an indictment for murder, (special verdicts may be found in criminal as well as in civil cases,) the jury should doubt whether the evidence was sufficient in law to sustain such a degree of malice as would justify them in finding the prisoner guilty in the first degree; in such a case they may find all the facts deposed to and refer the question of law to the Court; the ve'rdict would then be in abeyance until the Court should determine that question; this would be strictly a special verdict. But if that jury had found the prisoner guilty of murder in the first degree, and had added the words “ believing lie evinced malice aforethought by threats made previous to the killing,” this would be a verdict finding the whole issue, and more than the issue, by superadding the reasons therefor, and nothing would be referred to the Court. So in this case, the jury have found the whole issue and more than the issue, in so far as they have given their reason for so finding; they found for the plaintiff and assessed his damages, that ivas finding the whole issue before them; there was no reason why they should state how they believed the plaintiff had been deceived by the defendant, and their having done so is wholly immaterial. “ If the jury give a verdict of the whole issue and of more, that which is more is surplusage and shall not stay judgment: for utile, per inutile non vitiatur.” — Trials per Pais, 287. It is true, the verdict is not in the usual form, the jury having assigned the reason upon which they based it; but as we have said, we do not regard this departure from the usual form as material; “ where the intention of the jury is manifest and beyond doubt, the Court will set right matter of form.” Browne vs. Browne, et al., 22 Md. Rep., 115 . We think it manifest and beyond doubt that the jury in this case intended to find that the defendant had practised a deceit upon the plaintiff in the sale of the piano, — this is clear, not only from the finding for the plaintiff and assessing his damages, but from tlie fact that after the jury had heard the Court order the clerk to strike from the verdict the added words, and record the verdict without them in dollars and cents, they *606 agreed to the verdict in that form. We think the verdict in this case was a general and not a special one; that the words added to the finding for the plaintiff and assessing his damages were surplusage, and that the Court had the right to strike them out. Suppose, however, this was a special verdict and the Court erred in refusing to receive it entire, this Court could not reverse the judgment on that ground, there is no such question before us on this appeal. We have discussed the question because it is relied on by the appellant in his brief. The only question before us is, upon the motion in arrest of judgment; unless the Court below erred in refusing that motion the judgment must be affirmed.

(Decided 6th May, 1868.)

The only ground on which Courts can arrest a judgment, is some matter intrinsic appearing upon the face of the record, which would render it erroneous and reversable; it is too well settled to need argument or authority to show, that a judgment cannot be arrested for extrinsic or foreign matter not appearing upon the face of the record. The Courts are to judge upon the record itself. “ That which appears ill upon the same record, may be alleged in arrest of judgment; but not a matter of fact which doth not appear upon the record.” Trials per Pais, 328. The 'Maryland books are full to the same point, see The State vs. Phelps, 9 Md. Rep., 21 . Upon a careful inspection of the record before us we find nothing upon its face to warrant an arrest of the judgment in this case. The only foundation for the motion is an affidavit- of the counsel of the appellant setting forth matter of fact extrinsic and foreign to the record, stating matters which transpired in the Court below of which we can take no notice. We think the Court below was right in refusing the motion and affirm its judgment.

Judgment affirmed.