Jackson ex dem. Bradstreet v. Cannon , 2 Cow. 615 ( 1824 )

Curia.

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

The Court,

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.”