
    M’Murray v. Oneal.
    [Thursday, April 26th, 1798.]
    Privy Verdict — Agreement of Parties. — If the agreement of the parties, that the jury may render a privy verdict, he substantially performed, it is sufficient.
    Ejectment — Form of Verdict. — If in ejectment the jury find “for the plaintiff one cent damages," the Court may extend the verdict, and make it read: “We of the jury find for the plaintiff the lands in the declaration mentioned, and one cent damages.' ’
    The questions in this cause (which was an action of ejectment) arose upon ■ a bill of exceptions to the opinion of the County, Court, stating, that after the jury had retired, it was agreed by the counsel, that they should deliver a privy verdict to John Peyton, Deputy Clerk of the Court. That the jury delivered a verdict at the office of the said John Peyton, who was riot there at the time of the said delivery. That a certain Obed White, one of the Clerks in the said office, in the presence of another of the Clerks, sealed up the verdict with other papers relative to the said cause; and, put them so sealed, upon a table standing in the office, and then the Deputy Sheriff discharged the jury. That Peyton came soon after to the office, and sent to have the jury called; but, eleven only appeared, and after some short time, -were discharged ae-ain. That the said papers sealed up as aforesaid, were produced to the Court by Peyton, and amongst them, was found a verdict in these words: “We, the jury, find for the plaintiff, one cent damage.” That the plaintiff’s counsel, thereupon moved to amend the verdict, by adding the words, “the lands in the declaration mentioned,” alleging, that one of the counsel for the defendant agreed, that Peyton should correct any informality that might appear in the said verdict; 247 and, the said Peyton, informing *the Court, that he so understood the agreement by the counsel, and that he should have made the alteration in the said verdict, the Court accordingly ordered Peyton to make the addition ; it being proved by one of the jury, that it was their intention to find the land ,in the declaration mentioned. That the addition was accordingly interlined, so as to make the verdict read, “We of the jury, find for the plaintiff, the land in the declaration mentioned, and one cent damage,” the said jury not being then present.
    Upon this verdict, the County Court gave judgment for the plaintiff. The District Court reversed that judgment; “because, the agreement was not strictly complied with: and, because, it did not appear that all the jury were present at the delivery of the verdict.”
    Prom which judgment of the District Court, the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The parties might agree upon the manner how the verdict was to be received. It is like an agreement for the delivery of an award. The only question then, is, if the agreement has been complied with? The jury went to the office; Peyton was out, but the other deputies were in. They delivered their verdict to one of those deputies ; and, Peyton, shortly after, coming in, opens the seals in the presence of eleven of the jurors, and finds the verdict enclosed: Which was substantially a delivery of the verdict, to him. The same strictness was not necessary here, that would have been, had the verdict been delivered in open Court; the agreement does not prescribe in what form it was to be delivered to Peyton. The only caution requisite, therefore, was to prevent the substitution of a fraudulent verdict. There might have been more doubt as to the amendment, if it had been material; but, it was not. It is usual, indeed, for the jury to say, that they find for the plaintiff the lands in the declaration mentioned; but, the real verdict is, 248 that the defendant is *guilty of the trespass and ejectment. The District Court, therefore, erred, and the judgment of the County Court ought to have been affirmed.
    
      
      Ejectment — Form of Verdlct. — The principal case is cited with approval in Turberville v. Long, 3 Hen. & M. 315: Elliott v. Sutor, 3 W. Va. 40. But in Low v. Settle, 22 W. Va. 400, the decision in Elliott v. Sutor, supra, is declared to be erroneous, and the principal case, and Tapscott v. Cobbs, 11 Gratt. 172, (the two authorities relied on in Elliott v. Sutor, supra) distinguished and explained. The court, in its opinion, explains the effect that the statutes have had on the decisions in the principal case and Tapscott v. Cobbs, supra, and says that neither case throws any light on the form of a verdict in ejectment under the Codes of Virginia and West Virginia.
    
   PENDEETON, President,

after stating the case, delivered the resolution of the Court as follows:

In this case, two objections are made to the proceedings of the County Court, in which the District Court reversed their judgment.

1st. That a privy verdict, was improperly given in the cause.

On this point, since the consent of parties will cure error, and an agreement is stated, that a privy verdict might be given, the only question is, whether the agreement has been properly pursued?

The consent is, that the verdict should be given to John Peyton, deputy Clerk.

The fact stated is, that the jury went with the Sheriff to the Clerk’s office, and Mr. Peyton being absent, delivered the papers to an acting Clerk, who sealed them up and laid them on the table, and then the jury was discharged. Peyton coming into the office soon after, endeavored to collect the jury together, but all could not be got.

The papers remained sealed, and were by Peyton delivered into Court next morning, where they were opened, and the verdict found amongst them.

There seems to have been no personal confidence reposed in Mr. Peyton, but a reference to him in his official character as deputy Clerk; and, in the transaction, intended to be at his office, he was to be a mere minister, and the duty might as well be performed by another Clerk there, as himself, provided, it was fairly done, which appears to have been the case.

The Court, therefore, are of opinion, that the agreement, if not literally, was essentially pursued, and overrule that objection.

*2nd. The second objection assigned was, that the County Court directed the Clerk to amend the verdict, which was, “we find for the plaintiff one cent damage ;” and this, by the amendment, was made to read, “we find for the plaintiff the lands in the declaration mentioned, and one cent damage.”

An agreement is stated, that the Clerk might amend form; and, independent of that, it was a general verdict for the plaintiff, in a form very commonly used, which the Clerk, in his order-book, was to reduce into form, according to the issue. The interposition of the Court was unnecessary, and only directed the Clerk to do in substance what it was his duty to have done without that direction.

On both objections, there was error in the District Court. Their j udgment is therefore reversed, and that of the County Court affirmed.  