CHAP. IV. nutes of the verdict. On the IMMEDIATELY after the foreman of the jury has verbally pronounced their verdict, and even before the next cause has been called on, the associate writes his minute of the substance Associate's mi- of the verdict on the jury panel, stating, according to the facts, "Verdict for plaintiff on first count, damages £"third count, damages £--. The residue for the defendant; "Costs for plaintiff 40s." From this minute the formal postea is afterwards, more at leisure, to be drawn, and entered at length or in full on the back of the nisi prius record. (b) The postea itself is so called from the Latin word POSTEA, (Anglicè afterwards,) with which it commenced when the proceedings were in Latin. The statutory rule schedule, Hil. T. 4 W. 4, directs that "the postea shall be in the usual form," (c) one of which is given in the note, and many others are there referred to. (d) The substance of the postea is governed by the terms Postea in as sumpsit where defendant appears at the trial. (a) Tidd, 9th ed. 900; Tidd's New Prac. 537. (b) 3 Bla. Com. 385; Tidd, 9th ed. 900; Tidd, New Prac. 537; Reg. Gen. Hil. T. 4 W. 4, No. 2; Archbold's Prac. K. B. by T. Chitty, 5th ed. 392; 1 Arch. C. P. 200; and see several forms, T. Chitty's Forms, 314 to 325. (c) Reg. Gen. Hil. T. 4 W. 4, schedule, No. 2; 5 Bar. & Adol. appendix, xi.; 10 Bing. 473; 2 Crom. and Mee. 26; and see several Forms, Tidd's Forms, 314 to 325; 3 Bla. Com. 386, n. 1; Tidd's New Prac. 557. (d) Afterwards, that is to say, on the day and at the place within contained, before the Right Honourable [name of chief justice in K. B. or C. P.] the chief jus tice within mentioned, -, esq., being associated to the said chief justice, according to the form of the statute in such case made and provided [or in Exchequer say, "before the Right Honourable [name of chief baron], the chief baron within named," or in country causes," before Sir knight, one of the justices of our lord the king assigned to hold pleas before the king himself, and Sir the justices of our lord the king of the bench," or " Sir -, of the Exchequer of our lord the king, justices of our said lord the king, assigned to take the assizes in and for the county of according to the form of the statute in such case made and provided,"]t come as well the within-named plaintiff as the within-named defendant, by their respective attornies within-mentioned; and the -, knight, one of knight, one of the barons of the several issues joined in the pleadings. It will be observed that in general the postea, or finding of the jury, is for the plaintiff or the defendant, or upon one or more particular facts, and simply in the affirmative or negative, and finding the existence of a promise or of a named debt, or finding damages to have been sustained to the amount of £-—, in consequence of an injury. As all the jurors must concur in such verdict or finding, it might be supposed that it would be the constant practice to allow such jurors to inquire of the judge as to the consequences of their finding; and that adequate time to ascertain that they jurors of the jury, whereof mention is within made, being summoned, also come, who, to speak the truth of the matters within contained, being chosen, tried, and sworn, say upon their oath that [&c. stating the affirmative or negative of the issue, as it is found for the plaintiff and in the terms adopted in the pleadings; thus, if the plea be nom assumpsit, say, "That the defendant did promise in manner and form as the plaintiff hath within complained against him"] and they assess the damages of the plaintiff on occasion of the not performing the said promises within mentioned, over and above his costs and charges by him about his suit in this behalf expended, to £- and for those costs and charges to forty shillings. Therefore, &c.-See 1 Chit. Ar. Pr. S06, 314. CHAP. IV. OF L'OSTEA. [Same as in the form supra to the asterisk*, and then state the affirmative or negative Postea in delt. of the issue as it is found for the plaintiff, and in the terms adopted by the pleadings; thus, if the plea be nil debet, in a qui tam action, “ say upon their oath that the defendant doth owe to our said lord the king [or" the poor of the said parish of --"] and to the said plaintiff who sues as within-mentioned, the said sum of £- within demanded, in manner and form as the plaintiff hath within complained against him," [or where the plea is non est factum, “ that the writing obligatory (or" indenture," or "articles of agreement," or "deed poll,") within-mentioned, is the deed of the defendant in manner and form as the plaintiff bath within in that behalf alleged,"] and they assess the damages of the plaintiff, on occasion of the detaining the within debt, over and above his costs and charges by him about his suit in this behalf expended, to one shilling, and for those costs and charges to forty shillings. Therefore, &c.-See 1Chit. Ar. Pr. 307, $14. [Same as in ordinary cases, and see the preceding forms. The judge who tried the cause will indorse on the nisi prius record his certificate, which may be as in one of the two following forms. I certify that in my opinion execution ought to issue in the within action forthwith [or "on the day of instant," or "next,"] for the whole of the sum, [or for £part of the sum"] found by the verdict therein. Dated this day of [Judge's or baron's signature.] Postea where he judge certifies for immediate execution. Certificate of the judge for immediate execution. I certify that in my opinion execution ought to issue in the within action on the The like, unless day of instant, [or "next,"] for the whole of the sum found by the verdict, unless the certain bills or defendant shall before that day duly indorse and deliver to and deposit in the hands of goods are dethe plaintiff certain bills of exchange, [or "goods,"] which the said plaintiff hath agreed posited with to for "which I order that the plaintiff shall"] accept as a collateral security for the plaintiff before payment of the damages and costs in the said canse, that is to say, a bill of exchange, a named day. &c. [here describe the property to be deposited,] but in default thereof execution is to issue on the day of - A. D. 18 Dated this day of -18 [Judge's or baron's signature.] According to the statute made in the ninth year of the reign of his late majesty King George the Fourth, [or" in the third and fourth years of the reign of his late majesty King William the Fourth,"] I do order that the plaintiff [or" defendant"] have leave to amend, and that he do amend accordingly the within record by inserting [or "striking out," &c.] in the declaration [or "plea," &c.] the words [&c. setting out the nature of the amendment] on payment of costs to be taxed by the master, [or" prothonotary,"] [er" on payment of shillings costs."] Dated this day of -18 [Judge's or baron's signature.] CHAP. IV. have all distinctly ascertained the points to be decided upon would be allowed, and that they have all certainly concurred; but it has been insisted that the practice in these respects is by no means satisfactory, and that it is not usual, as it should be, to allow questions to be put to or by the jurors respecting the meaning or intention, and practical effect of their verdict; or, in other words, why they pronounced it, and in general after the foreman has said "we find for the plaintiff, debt £—, [or damages £-]," the trial is considered to have been concluded, and no subsequent inquiry is permitted. (e) When there is the least ground to apprehend that the jury have mistaken any material point, as sometimes occurs, particularly in replevin, (where each party, whether plaintiff or defendant, is considered to be equally an actor,) it would seem to be desirable that the judge or his associate should be not only authorized, but even required to interrogate the jury as to their intention and precise finding until all doubt has been removed. For want of such investigation Verdicts are sometimes recorded that were not intended by the jury, and yet in justice and reason no verdict ought to be suffered, either by accident or mistake, to rest in doubt; thus in a recent action of trespass, where the issue was on the plea of son assault demesne, and the affirmative of the issue being on the defendant, consequently his counsel began, by which the jury were misled and found a verdict for the defendant, although they intended to find for the plaintiff, and thereupon the plaintiff, in the following term, moved the Court for a new trial; yet, nevertheless, the Court refused to interfere, saying, "Though "this verdict might probably have been given under a mistake, yet the jury as such being now separated, the affidavits of any individuals composing that jury cannot be received, and "the rule for a new trial must consequently be refused." (e) Assuredly such an unfortunate instance of failure in the administration of justice ought not again to be suffered. To avoid the recurrence of any such a blunder it might be desirable, in a case of the least doubt, to permit and even require the counsel on each side to question the jury very particularly as to their intention, so as to ascertain that they fully understood the question upon which they were to decide, and each the import of the verdict proposed to be given. 66 (e) Bridgwood v. Wynn, 1 Har. & Wol. (e) Bridgwood v. Wynn, ̧1 Har. & Wol. 574, sed quære. en CHAP. IV. OF THE POSTEA, tiff is entitled to the poss s It has recently been decided in the Court of King's Bench that if the plaintiff recover on any part of the record he is titled to the possession of the nisi prius record immediately after When the plainthe verdict, and it is immaterial whether he have a right to a verdict on the whole of the first issue, or whether the judge's son of the certificate has taken away his right to more costs than damages. (ƒ) The clerk of the judgments is authorized by a late rule of that Court (g) to permit the Posteas and Inquisitions to be taken out of the office for the purpose of being produced to the sealer of the writs in order to obtain a writ of execution: but the attorney or agent who produces such posteas or inquisitions from the office of the clerk of the judgments, is required by the rule to cause the same to be returned again to the same officer during the office hours of that day. And by the late act for the more speedy judgment and execution in actions brought in his majesty's Courts of law at Westminster, (k) it is enacted, that "in all cases where the judge before whom "the cause is tried certifies under his hand on the back of the "record, that in his opinion execution ought to issue forthwith, "or at some day to be named in such certificate, and subject or not to any condition or qualification, &c. the postea, “with such certificate as a part thereof, shall and may be entered "of record as of the day of which the judgment shall be signed, although the writ of distringas juratores or habeas corpora "juratorum may not be returnable until after such day." 46 In a modern case, (i) where the plaintiff's attorney obtained a postea from the associate in C. P. on the morning of the quarto die post, under the pretence of having it stamped, but instead thereof signed judgment immediately and issued execution thereon, the Court set aside the judgment and execution, and ordered that the associate should not in future deliver over the postea until the morning after the quarto die post. In the Common Pleas it was a rule (k) that where final judgment was signed upon posteas or inquisitions upon writs of inquiry, such posteas or inquisitions should immediately be left with the clerk of the judgments, and should not afterwards be taken out of the office without leave of the Court. (k) Postea. CHAP. IV. OF THE L'OSTEA. If the postca be lost, a new one may in some cases be made out from the record above and the associate's notes; () if wrong, it may be amended by the plea roll, (m) by the memory or notes of the judge, (n) or the notes of the associate or clerk of assize. (0) The application to amend by the judge's notes must be made to the judge who tried the cause. (p) The Court will not alter a verdict unless it appears on the face of it that the alteration would be according to the intention of the jury, (q) but not after a considerable lapse of time to increase damages, although the jury join in an affidavit stating their intention to have been to give the increased sum, and thought they had in effect done so, (r) And in another case a verdict was rectified which had been mistakenly delivered by the foreman. (r) Where the jury having found the treble value in an action of debt on the statute for not setting out tithes, on a writ of inquiry, the inquisition was amended by the insertion of nominal damages. (s) In an action by one defendant in assumpsit against a co-defendant for contribution, the postea is evidence to prove the amount of the damages. (t) The production of the postea is not sufficient evidence of a judgment; a copy of the judgment founded thereon must also be produced. (u) But the nisi prius record, with the postea indorsed, is sufficient to prove that the cause came on to be tried (x) on the day of trial. (y) If an amendment was allowed on the trial, under the 3 & 4 W. IV. c. 42, s. 23, the order for such amendment must be indorsed on the postea or the writ on which the trial was had, and returned with the record or writ; and thereupon the papers, rolls, and other records of the Court, which it may be necessary to amend, should be amended accordingly; and if the trial was had in a Court of record, then the order for the amendment must be entered on the roll or other document upon which the trial was had. (z) Where a special case has been stated, the postea is stayed in the hands of the clerk of Nisi Prius or associate until the (1) Dayrell v. Bridge, 2 Stra. 1246. 83. (q) Spencer v. Goter, 1 H. Bla. 78. (r) Jackson v. Williamson, 2 T. R. 281; sed vide Cogan v. Ebden, 1 Burr. 583. (s) Ball v. Hodgetts, 1 Bing. R. 182. (t) Foster v. Compton, 2 Stark. R. 364; 9 Price, 359. (u) Bull. N. P. 234; Willes, 367. (a) Pitton v. Walter, 1 Stra. 162; Willes, 368. (y) R. v. Page, 6 Esp. R. 85; see 9 Price, 359; Tidd 8th ed. 977. (*) 3 & 4 W. 4, c. 42. s. 13. |