1789.
not paid, they would never have given a verdict for 114,286 weight of tobacco. This was the very thing litigated and determined ; and it was the province of the Jury, under the act of defalcation, to afcertain the balance, which muft have appeared from the evidence. The verdict, therefore, alfo aids the omiffion of the averment. See 3 Black. Com. 394. Carth. 389. Jenk. Cent. 21. ca. 39. Ibid. 288. ca. 24. Several of the cafes cited on both fides do not apply ; but all the late authorities (many of which are in point) fupport our judgment on this occafion. Thofe cafes which bear a contrary afpect, occurred before the laft of the ftatutes of Jeoʃʃails, and previous to the more liberal decifions of modern Judges. 2 Burr. 756. The general rule, however, is now well eftablifhed, that if a Plaintiff ftates his title in his declaration in a defective manner, it will be cured by a verdict ; but not fo, if the title is totally defective in itfelf. Cro. E. 778.
2. The ʃecond objection is to the verdict ; and to prove the invalidity of that, the Counfel for the Plaintiff in Error, have cited Cro. J. 681. Yelv. 71. 2 Roll's Abr. 693. tit. Verdict pl. 5 Vaugh. 75. 4. Com. Dig. 145. 1 Inʃt. 227. Cro. Jac. 31. Cro. E. 133. 2 Sta. 1089. 2 L. Raym. 1581. 3 Lev 55.
To this the Defendant's Counfel have replied, that ftrict form in a verdict is not now required ; that it needs only to be underftood what the intention of the Jury was, agreeably to which the verdict may afterwards be moulded into form ; that the conftant practice in all the Courts in this State, as well before as fince the Revolution, has been to enter the verdicts on the iffue of non ʃolvit in the manner that has been ufed in the prefent cafe ; that the intention of the Jury is plain; and that the mode of entering their verdict is the act of the Clerk.–– Hob. 54. Co. Litt. 227. a. Salk. 328. pl. 2. 2Lill. Abr. 798. 4Bac. Abr. 58. 59. 99. 5 Bac. Abr. 297. 298. 314. 2Burr. 700. Cro. E. 664.
The Court, concurring in thefe reafons, cannot allow this exception.
3. That the judgment is for money, and not for the tobacco itfelf, or, it that cannot be had, then for the value thereof, makes the third objection ; in fupport of which the following books are cited: Yelv. 71. 8 Vin. Abr. 41. pl. 15. 17. 18.
But it is contended on the other fide, and fuch is the opinion of the Court, that if the verdict is good, the judgment muft likewife be fo ; for being entered generally, when it is drawn at large, it may be put into form ; and the merits having been tried, juftice muft be obtained without being entangled in technical niceties.–– Cro. J. 502. 6 Mod. 270. 1 Wils. 1. 2. Stra. 931. 1013. 1 Sid. 376. 5 Mod. 227. 1 Vent. 119. 2 Wils. 380. Cowp. 407.
4. The laʃt error affigned in this record, refpects the refufal of the Court of Common Pleas to admit the Defendant below to read in evidence, a copy of an act of Affembly of the State of Virginia, printed by the Law Printers there, and ftitched up, with a few other acts, in a blue paper cover.
To
