
    Hanly, Wright, and Rooney v. Levin.
    Declaration by prochein ami, but record does not allege plaintiff to be a minor. Defendant presumed of age, and the procuratorship rejected as surplus-age. Minority is a matter of fact to be litigated upon pleadings.
    In trespass, pleas not guilty and justification, verdict guilty and damages assessed, justification not noticed, it is error.
    Verdict not amendable, in matter of form, in the Supreme Court, after writ of error brought. After judgment is reversed on a verdict, in a proper case, it may be amended, in the court of common pleas, where it was rendered.
    This was a writ of error to the common pleas of Hamilton county, adjourned here for decision, from the Supreme Court of that county.
    The ease was this: Levin brought an action of assault and battery against Hanly, Wright, and Rooney. The terms of the writ were, that the defendants be summoned “ to answer to Lewis C. Levin, by his next friend, Edward Hodge, in a plea,” etc. The declaration set out, that the defendants “ were summoned to answer to Lewis C. Levin, who, by leave of the court, appeared by his next friend,” etc. The declaration was subscribed, “ James F. Conover, plaintiff’s attorney.”
    *A11 the defendants joined in a plea of “not guilty.” Hanly pleaded a separate plea of son assault demesne, upon which issue was joined. Wright and Rooney also pleaded separately that Levin and Hanly were fighting together, and they interfered only for the preservation of the peace, and upon these pleas issue was joined.
    The verdict of the jury was in the following words: “We, the jury, find the defendants guilty, as the plaintiff, in declaring, hath alleged, and assess the damage sustained by the plaintiff to three-hundred and fifty dollars.
    Judgment for the plaintiff, on the verdict, to reverse which the writ of errror was brought.
    The errors assigned, were :
    1. That the record did not show that the plaintiff was an infant.
    2. That the pleadings were subscribed by the attorney.
    3. That there was no finding of the jury upon the special pleas.
    J. F. Conover, for defendant in error:
    The first error assigned is as follows: “ In that it does not appear thereby, that the said Lewis C. Levin, the plaintiff, was a minor, or that any legal cause existed for the prosecution of the said suit, in the name of the said Hedge, as the next friend of saidLevin.”
    The mere statement of this error is its own best answer. If it does not appear by the record, that Levin was a minor, the court can not presume that he was, and there is certainly no error on this behalf, in the record. The record nowhere shows Levin to be a minor. And the court can not look beyond the record itself. This point is so well settled, that their honors, Judges Hitchcock and Wright, would not hear an argument upon it, at their late sitting in Hamilton county. See also 2 Bac. Ab., title Error, 489, Phil, ed., where it is laid down, that if errors did not appear by the record, even “ though the matter assigned for error should be proved by witnesses of the best credit, yet the judges *would not admit of it.” See also Id. 486; 2 Tidd’s Prac. 1051; 2 Saund. 101,n. 1.
    With regard to the introduction of the name of Edward H. Hedge, as Levin’s next friend, admitted by leave of the court, it is unobjectionable on three grounds: 1. Because it is mere surplusage, and therefore does not vitiate. Jacob’s L. Die., title Verdict; 3 Saund. 308; 1 Chit. Pl. 218, 233, 234; 1 Arch. Pl. 160. 2. Because it was admitted by leave of the court, and the court is-presumed to do what is right where it has jurisdiction. 2 Starkie’s Ev. 802, 803; 1 Arch. Pl. 178. 3. Because it might have been taken advantage of by special demurrer, and whatever can-be taken advantage of by demurrer or abatement is cured bv verdict. 2 Bac. Ab. 492; 1 Saund. Pl. 2; 1 Chit. Pl. 547; 1 Arch. Pl. 178; 1 Saund. 227, 228, n. 1; 1 Day’s Cas. in E. 186, n.
    From the foregoing facts and authorities it is clear that the arguments and authorities of plaintiffs in error’s counsel do not apply under this head. Nor do his authorities, in several instances, support the points he represents — viz: that' from Com. Dig., title Pleader, 2 C. 1, 556. No authorities that I can find, require that the record should show the party suing to be of full age. If the record does not show the contrary, the party’s competency to sue-is presumed of course. If he should not be competent, advantage must be taken at the trial, by abatement or demurrer. 1 Arch. Pl. 539; Id. 178.
    The second error assigned is in these words: “In that it appears that the said Levin prosecuted said suit in the name of said Hedge, or his next friend, but nevertheless the said proceedings, to wit, the declaration and the several replications to the defendant’s several pleas, are all filed by the attorney of said Levin ; whereas, by the law of the land, if said Levin was a minor, he could not appear, nor prosecute, by his attorney.”
    The learned and important case of Apthorp v. Backus, Kir. Conn. 407, puts this objection, as well as those assigned under'the first head, completely to rest. The argument, upon all these matters, is there most fully and learnedly gone into, by Chief Justice Law and Judge Ellsworth. It is there expressly decided, that an infant’s appearance by ^attorney can not be taken advantage of after verdict. The whole of this highly important case is recommended to the special consideration of the honorable court in bank, as covering the whole ground of the errors assigned in the present case, and as being amply sufficient to sustain the judgment and verdict. See also 1 Amer. Dig., title Verdict, under Connecticut head, sec. 2, p. 385; 1 Bing. Inf. 126; Cone v. Bowles, 1 Salk. 205.
    . But it will be j>erceived that this second assignment of error .also assumes that Levin was a minor, though no such fact appears by the record. And the statement of the opposite counsel, in his argument, that such fact may be inferred, belongs to his own fancy, and to no law that I can find. If, however, such an inference can be acted on by the court in bank, the ease in Kirby, 407, is perfectly satisfactory. It is an American decision, by very eminent judges, and therefore entitled to much more weight than foreign decisions. See also Bing. Inf. 126.
    The statute of jeofails of Ohio is quite as broad as that of Connecticut, or of England, and covers all the errors that are here as.signed, even if the errors assigned fully existed in the record. .
    There is no principle in law more fully established by the best' authorities than that all errors are cured by verdict, that might have been taken advantage of by demurrer, abatement, or any other special plea. 2 Bac. Ab. 492; 1 Saund. 227, 228, and particularly note 1; 1 Arch. Pl. 178; and numerous authorities there cited; 1 Pet. Cond. 326, notes.
    Advantages of personal disabilities, of either plaintiff or defendant, must be taken by plea in abatement. 1 Tidd’s Prac. 684, 685; Arch. Pl. 539; 1 Saund. Pl. 2; 2 Bac Ab. 492; 1 Chit. Pl. 547; Bing. Inf. 127; 1 Salk. 93.
    
      There is, however, another ground on which the plaintiffs in error must fail to support their assignment ot errors. The defendants all pleaded generally in bar, and after a general plea in bar, no personal disability of the plaintiff can'be taken advantage of on error. 2 Bac. Ab. 492. This case is put: “ If a feme covert bring an action in her own name, per attornatum, and the defendant plead in bar to the action, *he shall never afterward assign the coverture for error.” See also 1 Arch. Pl. 177, Gould’s edition.
    The third error assigned is as follows:
    “In that there are four distinct issues presented in said record for the finding of the jury. Three of which issues are on the separate pleas of the several defendants; and the jury have passed upon and found but one issue, whereby three of said issues are yet undetermined and have not been passed upon.”
    The verdict of the jury is in these words:
    “We, the jury, find the defendants guilty, as the plaintiff in declaring has alleged, and assess the damages sustained by the plaintiff to three hundred and fifty dollars.”
    The declaration alleges, that the defendants all committed the assault and battery. To this the defendants all plead, “ not guilty,” . the general issue. This is their first plea. Then they all plead separate pleas of justification.
    How it can be correctly said, under this state of things, that the verdict does not cover all the issues, or the whole case, I am unable to divine. The verdict finds defendants guilty as charged in the declaration. This, then, certainly is the same as to say, gentlemen, you have all committed the injury, you are all guilty, you had no justification, no legal excuse, and your pleas are therefore not true. It certainly covers all the issues in the fullest extent. The defendants, by their first plea, put the fact of their committing the injury distinctly at issue. The reason why verdicts are set aside for uncertainty is that they afford no bar to other actions. But there is no such uncertainty in the case before us. The defendants are all found guilty, as they are alleged to be in the declaration. Of course, if they are all guilty on the general issue they can have no justification separately, or legal excuse, and the verdict expresses just as much as if it expressly said so. The following authority shows that this verdict is amply sufficient. In 2 Seld. N. P. (Wheaton’s), 1033, are these words: 
      “ If, in an action of trespass, a verdict be found on any fact or title distinctly put in issue, such verdict may be pleaded by way of estoppel in another action between the same parties or their privies, in respect to the same fact or title.” The fact of all the ^defendants unlawfully committing the assault was distinctly put in issue, and therefore-this verdict would be a bar against another action against all or any of the defendants. It is impossible, if they all committed the injury, as the declaration alleges, that any one of them could be justified in committing it. The verdict not only says they were all guilty, but assesses the damages at three hundred and fifty dollars against them all; for they all said, in their first plea, that they were “ not guilty.” Of course, if the jury had considered any of them justified, or any way legally excused, they would not have assessed damages against them. Can any reasonable man imagine for a moment that it was not the intention of the jury to find all the issues against all the defendants? It is impossible. I can scarcely conceive how-the jury could have expressed themselves more clearly, or in language less susceptible of misconstruction. But if the intendment of the jury can be clearly perceived it is sufficient. Eastman v. Chapman, 1 Day’s Cases in Error, 50; Spencer v. Overton, Id. 183; Hawks v. Crofton, 2 Burrows, 699, 700; 10 Mass. 64.
    The record does not show that leave had been obtained from the court to file separate pleas, though the common formality to that effect is alleged in the pleas themselves. But it is presumed" there should have been a special order of court. But the defendants, after pleading generally, notwithstanding the statute, had no legal right to put in separate defenses inconsistent with the general plea. No such construction can be given the statute.
    They had no right to put in "pleas of justification. Schemerhorn et al. v. Tripp, 2 Caine, 108; Smith v. Bouchien, 2 Strange, 993; Drake et al. v. Barrymore, 14 Johns. 166; 2 Seld. N. P. (Wheaton’s), 1029; 1 Saund. 28, n. 2. Their separate pleas, therefore, are mere nullities, and the jury were not bound to notice them, Consequently the separate pleas, and the replications to-them, being void in law, the court is bound to regard them as mere surplusage. Jacob’s L. Dic., title Verdict; 1 Chit. Pl. 218, 233, 234; 1 Arch. Pl. 160; 3 Saund. 308. If this position be correct, then the verdict applies only to the general issue, and its-sufficiency in this behalf admits of no doubt.
    
      ^Should the court, however, not regard the separate pleas and replications as mere surplusage and void, I have yet ample authority to sustain the verdict. And 1 now solicit the special attention of the court to several very important cases, completely analogous to the one under consideration, and which put the sufficiency of the verdict beyond a reasonable doubt.
    I shall first refer to the case of Hawks v. Cropton, 2 Burr. 698. In this case the declaration, pleas, and verdict are precisely similar to that of Levin’s, añd the judgment was sustained. This case first lays down the undoubted fact, “ that verdicts shall be favorably construed” — then if the meaning of the jury can be ascertained it is sufficient. Lord Mansfield says, the question is “whether tjiis verdict is so uncertain that the court can not give judgment upon it, but must award a venire facias de novo?” He says: “ I think the present case is such a clear case, that the court may here give judgment upon the substantial finding; though the clerk may have been irregular and faulty in, point of form, it is very clear wbat the jury meant.” The verdict in this case is a general verdict upon two distinct issues. All the judges refer to -a case in Hobart, 54, with great approbation, and cite therefrom this “very just rule:” “That though the verdict may not conclude formally or punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall make fhe verdict serve.” This case is quite full upon the subject, and is of itself, in my judgment, entirely sufficient.
    But I shall now cite another yet stronger. The case is an American case, and emanates from one of the best authority. It •is, therefore, doubly valuable. I refer to the case of Porter v. Rummery, 10 Mass. 64. Here the whole doctrine is very learnedly discussed by Mr. Justice Sewall, who establishes beyond controversy the sufficiency of the verdict under consideration. In the case of Rummery, issue was joined on two distinct issues, and the verdict is general. The. court holds this language, and which is go entirely'applicable to the case of Levin, that it can not fail to be conclusive: “In one view of the case, which may be ^suggested, this verdict seems capable of a construction, in which it may be understood as comprehending both issues, and sufficiently to warrant the judgment upon it for the tenant. The court are competent to collect the meaning of the jury, from the terms of their verdict, and one verdict may be a sufficient finding upon several issues” — p. 66. Certainly, the verdict in Levin’scase, “may be understood to comprehend all the issues,” especially as verdicts are to be favorably construed.
    These two very learned and important cases are supported more or less by the following authorities: Hobart, 54; Gostwicke v. Mason, 1 Mod. 3; Redman v. Edolfe, Id.; Jacob’s Law Dic., title Verdict; Eastman v. Chapman, 1 Day’s Cases in Error, 30; Spencer v. Overton, Id. 183; Apthorp v. Backus, 1 Kirby, 415; Jaques v. Cæsar, 2 Saund. 100, 101; 3 Saund. 308.
    “ Where the jury in debt on a bond, and nil debet pleaded, found nil debet to part, and debet to the rest, it was held sufficient.” Hadley v. Styles, 15 Petersdorff Abridgment, 336.
    There is a difference where the verdict is founded on a contract- and a wrong. In the latter case it is maintainable, if any part of the issue is found. Jacob’s L. Dic., title Verdict.
    The fourth error assigned is in these words: “In that judgment ought to have been rendered for the defendants, and not for the said plaintiff.”
    “ This assignment is considered as a mere matter of form, and of no consequence whatever. The court is not bound to inquire into errors, if the party does not show them.” 2 Bac. Ab. 486.
    On a review of the whole case, the honorable court will perceive that all the authorities and arguments of the counsel for plaintiffs in error are based upon false and untenable premises. - It was-first assumed that Levin was a minor, though no such fact appears upon the record. The arguments and authorities under the two first assignments, all proceed upon this assumption. His next, assumption is, that the verdict does not cover all the issues. This is also positively denied, on the reasoning and authorities before advanced. It is manifest, therefore, however much good law the gentlemen may have adduced, that it is not applicable to the present case.
    *Storer and Fox, for plaintiffs in error, in reply:
    The first error alleged is, that the suit is brought in the name of Edward Hedge, as the next friend of Levin, and there -is noaverment that Levin is a minor.
    The reason that an infant must appear by pro. ami, and prosecute, is that he is not personally liable for costs, and in all cases-when he does thus prosecute, the pro. ami is alone liable. 1 Tidd, 72; Morrell v. Pickman, 2 Esp.
    In Turner v. Turner, Strange, 708, Lord King says, that he could find no ease where the infant was held personally liable to pay costs. Hence, in England, -none but responsible persons were permitted ¡to sue as the next friends of infants; and they must have been first approved by the courts, or some judge at his chambers.
    If¡.then, the pro. ami alone is liable, it is because the plaintiff is an infant; if he is not an infant, his name on the record can create no responsibility on the part of the pro. ami, and as it creates no-responsibility, it is error for it to be thus inserted.
    All the forms require the insertion of the fact that the plaintiff is a minor. 2 Chit. 32; 2 Saund. 117, n. 1. Bingham on Infancy, 120, says, that in the King’s Bench the form is similar.
    It is a universal principle, that the capacity in which the plaintiff sues must be stated. If he sues as executor or administrator, he must make it appear that the testator or intestate is dead.
    If he does not appear to be a minor, it follows that he is represented on the record as of full age ; and it is clear, if it does not thus appear, it is erroneous. 2 Com. Dig., title Pleader, 2 C. 1, 556.
    There is no legal act that can be done by an infant unless through the intervention of a pro. ami; he can not sue, or even file errors on the record. Bing. 122.
    
      Error Second. That even if it could be inferred that the plaintiff was an infant, still, as he has appeared and pleaded by attorney, it is error. Formerly, the appearance of an infant plaintiff, by attorney, was error, but after verdict, the ^defect was cured Fy the statutes 21 Jas. I., c. 13; 4 and 5 Anne, c. 16. The statute, 21 Jas. I., c. 13, provides, that “judgment shall not be stayed or reversed, for that the plaintiff in ejectment, or other personal action, being under age, appeared by attorney. The statute 4 and 5 Anne, c. 16, “cures the effect of a warrant of attor: ney not being filed,”
    The law as to the appearance of an infant defendant by attorney is unchanged; it is universally held to be error, if he thus appears. 2 Tidd, 70.
    5 Com. Dig. 556, “ In all actions, real, personal, or mixed, if he appeal’ by attorney, it is error.” Brey v. Grobe, Cro. Jas. 10; Bing, on Inf. 123; Sampson et al. v. Jackson, Cro. Jas. 641; Dewitt v. Post, 11 Johns. 460; Arnold v. Sandford, 14 Johns. 423.
    The statutes of jeofails of this state is general; it is confined to matters of form, and does not specify the particular defects that are cured as by the English statutes. The same reason holds, it would seem, to reverse the judgment when the plaintiff appeared by attorney, as when the default appeared, and'more especially, as the defendant is literally taking an undue advantage, when he is permitted to obtain a reversal of a judgment on that ground. The plaintiff is bound to bring his action in legal form. The defendant is compelled to answer at all hazards; hence the propriety of requiring the plaintiff to commence his suit in a proper manner.
    
      Error Third. For that all the issues are not found by the jury, nor have they passed on the whole case, as the several defendants have pleaded separate pleas, which are found by the verdict to be true and untrue.
    When the jury find less than the whole matter in issue, a “ venire facias de novo” will be granted. 2 Tidd, 831. In Hooper v. Shepherd, 2 Str. 1089, the judgment was reversed because the jury did not find a verdict to cover the whole case. The action was on a charter party, at fifty guineas per month; plaintiff stated that six hundred and fifty-two qiounds was due for the whole one hundred and fifty-two pounds, ten of which had been received, and the remainder was five hundred qeounds, for which the suit was brought. The defendant qDleaded that he had paid at the rate of fifty guineas per *month for all the time the ship was in his service; issue was taken on the plea; the jury decided that three hundred and fifty-seven pounds remained unpaid; but say nothing as to the rest of the five hundred pounds.
    In Rex v. Dean of St. Asoph, Lord Mansfield says, “If the verdict omitting finding anything within the province of the jury to find, no judgment could be given, and there must be a venire de novo.” 3 Term, 426, in notes.
    “ A verdict that finds qjart of the issue and finding nothing for the residue; this is deficient for the whole, because they have not tried the whole issue wherewith they are charged.” Thomas’ edition of 3 Coke Lit. 539. “ As an information for intrusion into a house and one hundred acres of land, if the verdict finds against •the defendant for the land and says nothing about the house, it is void for the whole.” Id.
    “ In trespass against husband and wife, for beating his horse •and other trespasses, a verdict that the wife beat the horse and for the residue not guilty, but says nothing about the husband, whether he beat the horse or not, is bad.” Drury v. Dennis, Yelverton, 10 C. And so, in debt for seven pounds if there is a verdict for six pounds, and nothing for the residue. Finymore v. Sanky, Cro. Eliz. 133.
    If an action against three who pleaded personally and all the .pleas are not found true or certain, the verdict is bad. 5 Com. Dig. 504, title Pleader, S. 19.
    In an action of trespass against a number of defendants who severally plead not guilty, if the jury find a verdict for plaintiff, omitting to mention two of the defendants, the court will set the verdict aside as not comporting with the issue. Kilboun v. Wateron et al., Kirby, 124.
    In Yon Bethysen v. Dewitt et al., 4 Johnson, 313. “If no damages are assessed upon the breaches assigned in the plaintiff’s declaration, it is error.”
    In Patterson v. United States, 2 Wheaton, 225, it is decided “ that .a verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of .the rule is obvious, it results from the nature and the end of pleading ; whether the jury find a general or a special verdict, it is their duty to decide the *very point in issue, and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court or the appellate court that the finding is different from the issue, or is confined only to a part of the matter in ■issue, no judgment can be rendered upon the verdict.”
    In my judgment, says Judge Story, in Steams et al. v Banet, where a verdict is not expressed substantially in the terms of the issue, the cause ought to be extremely clear, that should induce the court to make it the ground of a final judgment. 2 Mason, 173.
   Judge Dane

delivered the opinion of the court:

The two first points are easily disposed of. The plaintiff has declared by prochein ami, but the record nowhere shows that he is ,a minor. Unless such fact appear, we must presume him of age, and may well reject the curatorship as surplusage, which does not vitiate.

The second plea, upon which the second point is predicated, sets forth the hypothetical assumption, correct in point of law, that if a minor he should sue by prochein ami. Minority is a fact which should be distinctly averred, that it may be traversed. It is not so alleged, and does not so appear of record, consequently, if true, it can not avail the plaintiff in error.

The tbi-rd point has given us more difficulty. It is plain .that the verdict of the jury should respond to all the questions submitted by the issues, and where an issue is left unanswered no judgment should be rendered. The court in which the verdict is given exercises the power of amending it, and of conforming it to the-issue, whenever the meaning of the jury can be distinctly ascertained, and when it appears they have acted and decided on the' whole merits. 3 Ohio, 384. It sometimes happens that the finding of one issue concludes the whole, although some are unanswered. The pleas of not guilty and justification in tort illustrate this. The finding of not guilty is enough, since it shows that no facts are proven, which it is necessary to expuse.

*In the present case, no doubt would arise but that the court of common pleas, when the present verdict was returned to them, might with propriety have applied it to all the issues, and have amended it, so as to have made it a full answer to each. The intention of the jury is sufficiently manifest, and the verdict contains enough. We entertain the opinion that the verdict per se, unamended, is no answer to any other plea than the general one. Had it been “ not guilty,” by negativing the assault, it would have been a sufficient answer to the justification, for no fact would have been left to justify. But a verdict of “ guilty,” may, and must be found,' before the jury proceed to the other question, and it may be truly found, while the justification is fully proved, and fully available as a defense.

Is it within the authority of this court to make the amendment?' By some of the English statutes of jeofails, the authority to amend is conferred in all its latitude, not only upon the court where the judgment was rendered, but in the court to which the record is-removed by error. And now, by the English practice, amendments may not only be made in the court to which the error is triable, but the court will disregard such errors as are amendable, and by intendment will sometimes consider the amendment as made,, without any actual alteration of the record. But the statute of Ohio limits the right of amendment to the time before bringing writ of error. And for many years past, it has been held settled, that after the allowance of error, the right to amend is taken away; I am sure this effect is not conducive .to justice, and believe, that if the question were new at this time, that the statute might properly receive a different construction. But a majority of the court think themselves bound by this long-continued practice.

Two cases are cited by the plaintiff in error, which deserve-notice. In 10 Mass. 66, where an action was disseizin, plea not guilty as to part, and non-tenure for remainder, .a verdict of not guilty only, the court rest their opinion upon the point that the-state of the record lays no foundation for a verdict for one. But they fully recognize the position, that the - court below “ might work it into form,” and make it answer the justice of the case, and they do not decide the *form of the verdict, as it then stood, was an answer to both pleas.

The case in 2 Burr. 698, seems precisely in point, to show that the verdict is good. A more minute examination of that case,, leads us to believe, that decision was made with reference to their peculiar mode of practice, in amending in the court of error, and of holding an error that might be amended not to exist.

Upon the whole, a majority of the court believe that the verdict, until amended, is no answer to the three last pleas, and that it can' not be amended in this court.

Judgment reversed.  