January Term, 1812.
1. A sued B in the County Court, and B pleaded several pleas. The jury, in rendering their verdict, neglected to pass upon some of the issues submitted to them, which being moved in arrest of judgment, the motion was allowed, and the judgment arrested. During the same term A moved that a venire de novo issue, which motion was allowed by the court; and at the next term the jury found for A upon all the issues. B moved for a writ of error, and assigned for error, "that a verdict had been before rendered in the same case, and judgment thereon had been arrested. Writ of error dismissed; for.
2. Although upon a judgment being arrested, the defendant is out of court, yet during the same term the whole matter of the cause is under the control and within the power of the court; the design was to set aside the preceding judgment and grant a new trial. The mode of proceeding was informal, but the substantial thing done was correct; and the administration of justice requires that the records of the county courts should be expounded with a view of ascertaining what was the object and design of those courts.
THIS was a writ of error brought to reverse a judgment recovered in Perquimans County Court. Samuel Creecy instituted an action of trespass quare clausum fregit, against Isaac White, who pleaded, "Not guilty, liberum tenementum, justification, license, trespass involuntary, and tender of sufficient amends." In rendering their verdict, the jury responded only to the plea of "Not guilty," and assessed the plaintiff's damages to ten shillings. It was moved in arrest of judgment that the jury had not passed upon all the issues submitted to them, and the court allowed the motion. A motion was then made on behalf of the plaintiff, that a venire facias de novo issue, which motion was allowed, and the writ being returned to the succeeding term of the court, the case was again submitted to a jury, who found for the plaintiff upon all the issues, and assessed his damages to £ 5. White then brought this writ of error, and (116) assigned for error, "that a verdict had been before rendered in the same case, and judgment thereon had been arrested."
The proceedings in this case are not so substantially defective as to warrant a judgment of reversal. For although upon a judgment being arrested the defendant is out of court, and is entitled under the act to his costs, yet during the same term the whole matter of the cause was under the control and within the power of the court. The motion for the venire and the entry of it was informal, because the preceding judgment made an end of the cause; but the design was to rescind that judgment and to grant a new trial, which the court might properly do. So if a nonsuit be awarded, the court, by afterwards granting a new trial, virtually and in fact set aside the nonsuit, although a precise entry to that effect might not have been made on the record. It is essential to the administration of justice in this State that the County Court records should be expounded, with a view to ascertain the real conduct of the court, and the exact history of the cause; and if they be such as the law permits, their judgment ought to be sustained, although the entries may not have been made with the technical exactness which the precedents of records prescribe. Let the writ be dismissed.