
    Randolph Foster v. S. W. Van Norman
    Writ of Error from Fort Bend County.
    Where a verdict and judgment were rendered in the district court for a small amount over and above the sum claimed in the petition, and the plaintiff, after discovering- the error, endeavored to release such excess by an indorsement to that effect on the execution issued: Held, that it was not such a case of error as justified any correction by the appellate court.
    Where it appeared from the record that twelve jurors sat upon the trial of a case, but the names of eleven only were given: Reid, to he no ground for error to the supreme court.
    This was an action brought in the district court of Fort Bend county, on a promissory note made by said Foster in favor of Wm. Yan Norman for $344.90, dated 4th November, 1842,.and payable one day after date — having a credit of $16 indorsed thereon.
    On the second day of the fall term of said court, 1845, the plaintiff in error having failed to appear, judgment by default was rendered against him. Three days afterwards he filed his answer pleading the general issue, and an offset of $11. No other defense seems to have been set up on the trial. A jury was thereupon called, who rendered a verdict in favor of the defendant in error for $419.08, and judgment was rendered accordingly.
    From an indorsement made by the attorney of the defendant in error in the court below, on the execution which subsequently issued upon this judgment, as is shown by tbe record, it appears that the jury made a mistake in rendering their verdict, whereby the amount assessed was too large by $27.94; for this excess is released, and the sheriff authorized to collect only $391.94.
    The actual amount of tbe excess, however, appears to have been only $21.57.
    Oil tbe 5th of January, 1846, Foster prayed for a writ of error to this court on the ground of errors apparent on the face of the record. The execution was accordingly returned to the clerk’s office by the sheriff, a levy hut no sale having been made.
    
      Sullivan, for plaintiff in error,
    assigned for error in this case the following points, to wit:
    
      1st. The judgment was for twenty-one dollars and fifty-seven cents more than appears to have been due.
    2d. There were but eleven men on the jury which found the verdict in the court below.
    The remission of the excess, made by the attorney of record, is not in accordance with the statute and is therefore nugatory; it should have been made by the plaintiff himself under seal. See Acts of the Legislature, p. 396, secs. 132, 133.
    “Affirmatives in statutes that introduce new laws imply a negative of all that is not in the purview; so that a law directing a thing to be done in a certain manner implies that it shall not be done in any other manner.” This rule is laid down in the case of the United States v. One Case of Hair Pencils, 1 Paine, p. 400; see, also, 6 Pet. Oond. p. 62.
    Duval, for defendant in error,
    contended:
    1st. That a writ of error did not properly lie in this case.
    2d. That the release made by the plaintiff in the court below, indorsed upon the execution, was valid and effectual. He cited in argument the 17th and 18th sections of the act of 1840, “ to regulate proceedings in civil suits,” and 4 Wend. 175; 6 Mass. 272.
   LtpscoMB, J.

There is no statement of facts or bill of exceptions in this cause, and no objection to the verdict in the court below.

It is now assigned for error that the verdict and judgment are for more than the plaintiff had claimed in his petition. If the calculation of interest, at eight per cent., is made on the sum claimed, it will not quite amount to the judgment. The difference, however, is small; and if a mistake of a character like this had been noticed it would have been corrected in the court below. And it further appears that before the suing out of the writ of error by the defendant, the plaintiff below, believing that an error to a small amount had been made in the calculation of the interest by the jury, entered a credit for a larger amount than the excess, on the execution. The execution itself is not before ns as a part of the record, but as the plaintiff below would have been allowed to file a remittitur in the office of the clerk, and this execution having been certified by the clerk, it will satisfy ns that no injustice has been done to the plaintiff in error. All that he could have asked would have been a remittitur of the excess in this court, if it had not already been allowed to him.

Another error assigned is that the record shows the names of but eleven jurors. The record states that the parties appeared by their attorneys, and thereupon came a jury of twelve good and lawful men, and names but eleven. After verdict under such circumstances, it is a fair inference that there were, in truth, twelve men on the jury, but that by a mistake of the clerk in entering the names of the jurors, the name of one was omitted. The parties made no objection to the jury and received it as a good and lawful one, after verdict and judgment; and no objection appearing to have been made at the time,, it will not be noticed in this court.

The judgment is affirmed.  