that it was upon the issue submitted to them. But such a verdict left the finding of the jury mcomplete. There would be nothing upon the record showing that the issue upon the question of title had been disposed of. The fact that the court had, in effect, directed a verdict for the defendant upon that issue did not appear; on this account, the amendment was necessary. The entry which the judge directed the clerk to make, gave shape and effect to the real finding of the jury. The question is, whether the judge had authority to direct it? In strictness, the jury should have found for the defendant upon the question of title. But their intention so to find is manifest. Can the court give effect to such manifest intention? It has always been held, that when a verdict is sufficient in substance to conclude the parties upon the issues tried, the court in which the trial is had may give it appropriate words; and even after error brought, an appellate court may make it right, by amending the transcript, and ordering the record below to be corrected. Rockefeller v. Donnelly, (8 Cow, 623). 'When the intention of the jury is manifest,' said Lord Mansfield, in Hawkes v. Crofton (2 Burr., 699), 'the court will set right all matters of form.' And it is laid down in Hobart, 54, that if the point in issue can be concluded out of the finding, the court will work the verdict into form, and make it serve.' Thus, in Petrie v. Hannay (3 T. R., 659), the defendant had pleaded the general issue, and the statute of limitations. There was a verdict for the plaintiff upon the first plea, but nothing said about the other. Error was brought upon this very ground. But the court ordered the verdict to be amended, so as to make it applicable to both issues. It is well settled, too, that where there are several counts in a declaration, and the jury find a general verdict, the court will, if some of the counts are bad, allow the verdict to be amended, upon the judge's certificate that the evidence given upon the trial was all applicable to the good counts (Sayre v. Jewett, 12 Wend, 135; Norris v. Dunham, 9 Cow., 151; Cooper v. Bissell, 15 John., 318). In The Executors of Van Rensselaer v. The Executors of Platna, 2 John. Cas. 17, the plaintiffs, as executors, had sued for and recovered, in the same action, rent upon an estate in fee, which had accrued both before and after the death of the testator. It was held that the objection on the face of the record was fatal to the recovery. But Radcliff, J., said, 'If it can appear from the judge's notes on the trial, that the plaintiff's claimed and recovered for the previous rent only, according to the modern and more liberal practice of our courts I am inclined to allow the verdict to be altered or amended, agreeable to the truth of the case.' Ia Beckmann v. Beemus (7 Cow., 29), the jury, in an action of replevin, had found a general verdict for the plaintiff. The circuit judge, after the jury had separated, ordered the verdict to be amended by adding, six cents costs;' and the court in term, when a new trial was asked for, allowed the verdict to be further amended by adding, 'six cents damages.' Jones v. Kennedy, 11 Pick., 125, is quite in point. There the declaration contained three counts; one upon a note, another for goods sold, and a third upon an account stated. The defendant pleaded the general issue. The jury returned a verdict for the plaintiff upon the first count. It was objected that the verdict did not find the whole of the issue. The court said the verdict might be amended so as to make it a verdict for the defendant upon the other counts. There being no evidence to establish the third count, the attention of the jury was properly directed to the consideration of the first and second counts. And as the case was presented to them, their finding the promise alleged in the first, implied a negation of the promise set forth in the second. Under these circumstances, we see no objection to entering a verdict for the defendant upon the second and third counts. The same may be said of the case in hand. As the case was presented to the jury, their finding a verdict for the plaintiff generally, implied that they found the conversion. When required to state the grounds of their verdict, they so declared. This finding necessarily negated every finding for the plaintiff upon the other issue. They followed the direction of the court, which was, in substance, that upon the first issue the defendant was entitled to their verdict. See also Porter v. Remming (10 Mass., 64), where it was held that the court might amend a verdict by putting it into form, if the intention of the jury could be gathered from their finding. Also Clark v. Lamb (6 Pick., 512). In the latter case, the verdict did not, in terms, find the whole issue. The court said, If the judge will certify, as we understand he is able to do, that there was but one demand in fact submitted to the jury, we think the verdict may be corrected.' Where, in ejectment, a verdict had been rendered for one half the premises, nothing being said about the other half, the verdict was amended by adding the words, and for the residue they find for the defendant."" Scott v. Galbraith (1 Dallas, 134). a. Section 264 implies that it may become necessary to separate exceptions, when incorporated in a case. Gilchrist v. Stevenson, 7 Pr. R., 275. b. It is not necessary in order to review questions of law arising on the trial, that the exceptions taken should be signed or sealed by the justice before whom the trial was had, or that a bill of exceptions should be made. Zabriskie v. Smith, 1 Kernan, 480. c. Where on an appeal to the court of appeals, it appears by the return, the exceptions were taken at the trial and separately stated, it is not necessary that they should be authenticated by the justice who tried the cause, or the court below. 16: d. But where the exceptions are in the first instance stated in a case containing matter not necessary to present the legal questions arising upon them, the party desiring a review in the court of appeals should procure the exceptions to be separated from the case by or under the direction of the court below, or a justice thereof. Ib. e. If it does not appear from the return that the exceptions were in the first instance stated separately, or that they were separated from the case in which they were originally stated under the direction of the court below, or a judge thereof, the appeal to this court will be dismissed. Ib. See notes to sections 262, 265, and 268. § 265. [220.] (Amended 1851-1852.) Motion for new trial, &c., where to be heard. A motion for a new trial, on a case or exceptions, or otherwise, and an application for judgment on a special verdict or case reserved for argument or further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions are taken, the judge trying the cause may at the trial direct them to be heard in the first instance at a general term, and the judgment in the mean time suspended; and in that case they must be there heard in the first instance, and judgment there given. And where upon a trial the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at a general term; and in that case, the application for judgment must be made at the general term. f. Before the amendinent of 1852 this section read, "Motions for a new trial on a case or bill of exceptions, motions for judgment on a special verdict, or case reserved, subject to the opinion of the court, shall in the first instance be heard and decided at a special term, unless the justice trying the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same." g. This section, before the amendment of 1851, was as follows: Judgment shall be entered by the clerk, in conformity to the verdict, which shall be final after the expiration of four days, unless the court or a judge thereof order the case to be reserved for argument or further consideration, or grant a stay of proceedings. a. Under this section, as worded in 1851, it was held by the New York Common Pleas, in Morgan v. Bruce, 1 Code Rep. N. S., 369, that "there is no warrant in the code for regarding a motion for a new trial as different in any of its material incidents from the like motion under the system of practice which existed before the code took effect; and that an application for a new trial should, in the first instance be disposed of as a motion and not on appeal. b. A review upon the evidence is not to be sought by a motion at special term for a new trial if the questions of law only are sought to be raised, as excepted to; a bill of exceptions is the appropriate form of proceeding; if the evidence is sought to be reviewed, and the finding of the facts considered either with or without the questions of law, a case and motion for a new trial are the proper proceedings. Ib. Making a case to review the evidence, is not the same thing as excepting to a decision on the matter of law for the purpose of an appeal. Ib. c. Where on the trial of cause, there was a verdict for the plaintiff, the defendants prepared a case with leave to turn it into a bill of exceptions, and intending to move for a new trial, both for misdirection of the judge, and because the verdict was against the weight of evidence. On motion by defendants to the judge who tried the case, for an order that the case and exceptions might be first brought to a hearing at the general term, and for a stay of proceedings in the mean time, the court said, "Where there are exceptions to be argued, as well as a motion to set aside the verdict on the ground of the weight of evidence, it is a great convenience to parties, and a saving of time to the court, that the exceptions and motion be heard together. We think that in every case where, from the nature of the questions of law presented or the amount in controversy, a decision at special term will not be likely to terminate the cause, the better practice is to order the case or bill of exceptions at once to the general term. The circumstance that there are facts to be examined as well as points of law, should make no difference. Especially ought this practice to be pursued where the points of law were ruled adversely at the trial. An argument of the bill of exceptions at special term, is, in such a case, nothing more than an appeal from one judge to another in the same court, which should never be permitted where it can be avoided. Suitable terms can always be imposed, on staying the proceedings in cases like this; so that the party who succeeded at the trial shall not be deprived by the delay of the fruits of his verdict." Morris v. Bower, 4 Sand., 701. d. "As the code now stands (May, 1852), two modes of proceeding to obtain a review of a trial are prescribed. The one is applicable exclusively to a trial by jury, the other to a trial by the court or by referees. These modes of proceeding are entirely distinct each from the other. In one, the review is had before judgment; in the other, it can only be had by appeal after judgment. * In respect to trials by jury, the 265th section of the code provides, that where a special verdict has been found, or the cause has been reserved for argument or further consideration, the application for judgment must be made at a circuit court or special term. The motion may be made upon the minutes of the judge, if made at the same circuit at which the trial was had, and afterwards upon a case or exceptions. The decision upon such a motion may be reversed upon appeal under the second subdivision of 349th section. When the motion for a new trial is founded upon exceptions taken at the trial, or a verdict has been taken subject to the opinion of the court, the judge who tried the cause may dispense with the hearing at a circuit or special term, and order that it be argued in the first instance at a general term. In that case no appeal is necessary. The general term is authorized to render judgment. Besides the appeal, before judgment, from the decision at the circuit or special term granting or refusing a new trial, under the second subdivision of section 349, an appeal upon questions of law may be taken after judgment, under the 348th section." Per Harris, J., in Watson v. Scriven, 7 Pr. R., 10. See notes to sections 264 and 268. CHAPTER IV. Trial by the Court. SECTION 266. Trial by jury, how waived. 267. On trial by the court, judgment to be given in twenty days. 269. Proceedings upon judgment on issue of law. § 266. [221.] (Amended 1849.) Trial by jury, how waived. Trial by jury may be waived by the several parties, to an issue of fact, in actions on contract; and, with the assent of the court, in other actions, in the manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes. a. Where a defendant did not serve an affidavit of merits, and did not appear on the cause being called for trial, the court, after the discharge of the jury, took an inquest; held, that it was irregular, and that the inquest should have been taken before the jury were discharged. Dickinson v. Kimball, 1 Code Rep., 83; Haines v. Davis, 1 Code Rep. N. S., 407; 6 Pr. R., 118. "For it seems that even if the defendant had appeared before the trial, the inquest could not have been taken by a jury, because the inquest was not taken until the jury had been discharged; so soon as the jury had been discharged, there was no right to a trial by jury to waive. I think the inquest should have been taken before the jury were diseharged, so as to afford the defendant an opportunity, in case he appeared, of claiming his right." Per Harris, J. Ib. See rule 21 of Supreme Court Rules. § 267. [222.] (Amended 1849.) On trial by the court, judgment to be given in twenty days. Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk, within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly. b." It has very frequently been doubted, and I have always considered it a doubt. ful question, whether this section of the code was intended to refer to any other class of cases except those which in their own nature ought to be referred to a jury. But a larger construction has been given to it. It is that construction I am willing now to follow. It has always been doubted whether this section should be considered merely as directory, or as involving a positive duty. The counsel for defendants have always insisted upon this, namely, that this section imposes by its terms a posi tive duty upon the judge, and that his failure to comply with this condition renders void any judgment pronounced by him after the expiration of the time limited. Adopting this construction, it is said that whereas I have not decided upon this case within twenty days, I have los all jurisdiction in the case. Although I am willing to give the construction that I have stated to this provision of the code, still I had a right to direct a re-argument upon any of the questions included in the case. It is the duty as well as the right of a judge to direct a new argument before his final decision is pronounced. In cases where the evidence is deemed by the court to be conflicting, the court will probably call a jury. The cases are numerous in which this course has been pursued. After a case has been heard by a judge, if it is doubtful in his own mind, the case should be referred to a jury." Per Duer, J., in Davis v. Mayor, &c., of New York, Superior Court, Special Term, October 29, 1853. a. "These acts (codes of 1851 and 1852), are very obscure in relation to a trial by the court; but I am inclined to think that on the trial of questions of fact by the court, the decision filed by the judge should distinctly pass upon and find all the material issues presented by the pleadings. If the complaint set up only general allegations of indebtedness, perhaps it would be sufficient to find, generally, indebtedness to a certain amount, notwithstanding several grounds of indebtedness were alleged. But unless the decision finds all the facts distinctly traversed, and put in a traversable form, it will be very difficult for the parties to know and protect their rights in any future suit, and the record must necessarily be imperfect. Probably if no objection is made to a decision finding the result in a general form, particularly in actions in which a general verdict could be given (s. 216), the appellate court would not consider the omission fatal. A party may have the facts found by the judge stated in a case; but it seems reasonable, as well as analogous to all former practice, that the issues should also be found, particularly in cases of common law jurisdiction, and when required by either party. And, besides, the finding of facts in the case may be a very different thing from finding the issues, and is more like the finding of facts by referees." Per Hand, J., in Gilchrist v. Stevenson, 7 Pr. R., 274. b. "I do not construe the section 267 of the code as making it the duty of a judge who has tried a cause without a jury, to set forth in his decision, as in a special verdict, all the facts of the case, including those not controverted by the pleadings, and those which, although controverted, he may deem immaterial. So far as questions of fact are concerned, the judge, in my opinion, fulfills his duty by determining the issues which in his judgment are material." Per Duer, J., in Attorney General and others v. The Mayor, &c., of New York and others (Nov. 26, 1853). c. This section is a substitute for a provision to the like effect in section 80 of the judiciary act of May 12, 1847; and under that act it was held that, when an issue of fact was tried before a judge without a jury, the finding of the judge was to be treated as if it were the verdict of a jury, Osborn v. Marquand, 1 Sand, 457; Hoppe v. Robbe, 1 California Rep., 373. And where a motion was made to set aside the finding of a judge in such a case, as being against the weight of evidence, the court held that it would not interfere unless the preponderance of evidence was so great, that the verdict of a jury to the same effect on the same testimony would be set aside. Ib. d. In the Supreme Court, Hurlbut, J., in Doke v. Peek. 1 Code Rep., 54, said, It must be observed, that there is a distinction between a decision of the court-that is, a judge-and the verdict of a jury. Since the code took effect, a trial by the court is very different to what it used to be. Before the code, it was only necessary to say, I find for the plaintiff or defendant. Now, I should say to the party in whose favor I decided, I find for you on all or some of the issues, draw up a special verdict, serve it on the adverse party, and within 20 days I will settle it; that would be the practice at nisi prius; it could not be expected of a judge that he is to prepare a special verdict. A judge will not draw the special verdict, but will require the party in whose favor he decides, to draw up a special verdict, and to attend before him, on notice to the adverse party to settle the same. e. A special verdict or finding of a judge in the nature of a special verdict where trial by jury is waived, should find all the conclusions of fact, so as to leave nothing for further determination, except questions of law. Sisson v. Barrett, 2 Coms., 406. j. Upon the trial of an issue of fact by the court, the prevailing party, on filing the decision of the judge, may enter his judgment immediately, Lynde v. Cowen |