Burhans agt. Tibbits.

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 vs. Hannay (3 Term 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 vs. Jewett, 12 Wend. 135; Norris vs. Dunham, 9 Cow. 151; Cooper vs. Bissell, 15 John. 318). In the executors of Van Rensselaer vs. The Executors of Platner, 2 John. Cases, 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 their 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 plaintiffs 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." In Beekman vs. Bemus, 7 Cowen 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 vs. 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 plaintiffs on 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

Burhans agt. Tibbits.

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 of the poles. When required to state the ground of their verdict, they so declared. This finding necessarily negated any 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 vs. Rumming (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 vs. Lamb (6 Pick. 512). In the latter case the verdict did not, in terms, find the whole issue. The court said, "if the judge shall 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 vs. Galbraith, 1 Dallas, 134).

But I need not cite other authorities to show how uniform has been the practice of amending verdicts, so as to make them conformable to the facts as certified by the judge. I admit that extreme caution should be used in allowing such amendments. Where the slightest doubt exists as to the real intention of the jury, their verdict ought not to be changed. But where no such doubt exists, it would be an unnecessary obstruction to the administration of justice to refuse such an amendment. When mistakes occur, and occur they will and do, every court will feel bound, so far as practicable without injustice to any one, to correct them. If, in this case, there had been any doubt as to what transpired on the trial; or, if there had been any doubt that the whole case had been disposed of by the court and jury in the manner in

Elliott agt. Hart and Spear.

dicated by the amended verdict, the amendment ought not to have been allowed, or, being allowed, it should be set aside. But there is no such doubt. No one denies that the case was fully heard and entirely disposed of. The jury intended to follow the direction of the court in relation to the question of title. The only error was in omitting formally to take their verdict for the defendant upon that issue. The case is clearly within the principle by which courts, from the earliest periods of our jurisprudence have been governed in allowing such amendments. The motion is therefore denied, but without costs

SUPREME COURT.

ELLIOTT agt. HART AND SPEAR.

Misnomer of defendants may be taken advantage of by motion to set aside the summons and complaint. It is doubtful whether under the Code there is a remedy in such case by answer.

Livingston Circuit and Special Term, February 1852. The copy summons and complaint served on the defendant Hart states the names of the defendants as Isaiah N. Hart and Samuel Spear. The copy summons served on the defendant Spear, states their names as Israel N. Hart and Samuel Spear; but in the copy complaint served on him they are named Isaiah N. Hart and Samuel Spear. The true names of the defendants are Isaac N. Hart and Simon Spear. The defendants, by separate attorneys, move to set aside, each as to himself only, the summons and complaint with costs.

J. K. HALE, for Plaintiff.

H. CHALKER, for Defendant Hart, and

GEO. BISHOP, for Defendant Spear.

T. R. STRONG, Justice.-Prior to 1825 it was the practice to set aside process and subsequent proceedings for misnomer of deVOL. VII.

4

Elliott agt. Hart and Spear.

fendants, if they applied before appearance and before the time for pleading had expired (see 4 Cow. 148, and cases there cited). But in that year a general rule was adopted, by which it was declared the court would not entertain such motions in future, but would leave parties to the remedy of a plea in abatement (see 4 Cow. R. 157; Gra. Pr. 2d ed. 200). No similar provision is contained in the present rules of the court, and it is doubtful whether, under the Code, the former remedy in such case of a plea in abatement exists. There should be some remedy, and I am inclined to think the practice which existed before the rule of 1825, of moving the court to set aside the proceedings, is now in force under rule 92 of the rules of 1847.

In respect to the copy summons and complaint served on the defendant Spear, there is a variance between the summons and complaint, in stating the names of the defendants, which might perhaps warrant the motion of that defendant, if the rule of 1825 continued in force (see 4 Cow. R. 549, and cases cited; Gra. Pr. 2d ed. 201, and cases referred to).

The motions are granted with $5 costs to each defendant unless the plaintiff, within twenty days after service of a copy of the order, amend by inserting the true names of the defendants, serve a copy of the amended summons and complaint upon the attorney of each defendant, and pay said costs. Liberty to amend upon such terms is hereby given.

*See Gardiner agt. Clark, 6 How. Pr. R. 449.

The People ex rel. &c. agt. Commissioners of Highways.

SUPREME COURT.

THE PEOPLE ex rel. BABCOCK agt. COMMISSIONERS OF PLAINFIELD.

Where commissioners of highways refused to lay out a road, and an appeal was brought from that determination to the county judge, whereupon, the referees appointed by the judge, reversed the determination of the commissioners, and ordered the road to be laid out, but did not lay it out: Held, that it was the duty of the referees and not of the commissioners to lay out the road, that the Revised Statutes (1 R. S. 519, § 91), required this to be done upon the appeal, by the judges, and that the act of 1847, p. 584, § 8, makes it the duty of the referees to perform the same acts, and therefore a mandamus requiring the commissioners to lay out and open the road, can not be granted. Such commissioners have no jurisdiction to lay out a road after their refusal to do so has been reversed, although the order of reversal directs it to be done; nor have they jurisdiction to open and make the road after such reversal.

The "final determination" mentioned in the act of 1845, p. 186, § 13, can be none other than a determination laying out a road, as provided by the Revised Statutes, which determination is the only one that the commissioners can be required to carry out under the act of 1845.

A mere reversal of the order of the commissioners, is not an order to be carried out by the laying out of the road. The termini, the courses and distance, and the width of the road, must be determined by the referees, otherwise the commissioners have nothing to guide them in performing the duty of opening it.

Commissioners of highways are officers of limited and special jurisdiction. They can only act in the cases and in the manner pointed out by statute; and he who asks that their orders shall be executed, must show that the statutory requirements have been strictly pursued. Therefore, held, that any act done by them in the performance of their supposed duties, will not prevent them from taking the objection that the relator has failed to show that the statute under which they acted, had been strictly complied with.

Oneida Special Term, July 1852. Motion for a peremptory mandamus to compel the commisioners of highways to lay out and open a highway after the decision of the referees upon appeal reversing the decision of the commissioners refusing to lay out the same.

C. H. DOOLITTLE, for the Motion.

GEO. W. GRAY, Opposed.

W. F. ALLEN, Justice. The relator moves for a peremptory