#### PALMER *v.*HARPER.

Receiving verdicts — notice of non suit of no avail — certificate of the clerk on error — tender of chattels and judgment in.

The mode of receiving verdicts from the jury and recording them is matter of practice for our courts to regulate for themselves, in which they are not bound by the mode adopted in other states or countries.

A verdict delivered to a judge at chambers is good.

If a plaintiff give notice before a verdict is entered that he will not answer if called, but submit to a non suit, he does not thereby impose on the defendant the necessity of calling him and having him non suited, but leaves him at his option to do so, or enter the verdict and take judgment upon it.

The court on error will take no notice of the transactions of the court below which do not appear on the record, and only certified by the clerk.

On a contract for property, and a plea of tender, the jury should assess the value of the property if the tender is established, on which the court may order its delivery or give judgment for the value; and it is error to give judgment on a general verdict for the defendant, leaving him the property contracted for and tendered.

Error to the Court of Common Pleas. Palmer sued Harper in assumpsit upon a note, payable in cattle. A trial was had on the plea of non assumpsit, and notice that by a subsequent agreement, the time for the delivery of the cattle was extended, and a tender and refusal within the extended time.

The clerk of the Court of Common Pleas certifies to this Court,

1. That the court instructed the jury to seal up and deliver their verdict to their foreman, or the court would receive it at chambers without seal.

The jury found for the defendant the agreement and tender as set forth in the notice. The verdict was given to a judge at his chambers. At the opening of the court in the morning, before the verdict was entered on the minutes or published in open court, the plaintiff gave notice that he should not answer when called, but suffer a voluntary non suit. The verdict was entered and judgment rendered upon it, notwithstanding the notice.

*Giddings*and *Wade,*for the plaintiff,

objected to these proceedings—

1. That the plaintiff should have been called and non suited. At common law he was demandable every day, and if he failed to appear he was non suited. If he did not like the verdict when demanded, he had a right to become non suited. 4 *Jac. L. Diet.*406, 402; 3 *Blh. C.*376; *5 Mod. R.*208; 12 *Petersdf.*766.

By the Court.

The mode of receiving a verdict and of permitting non suits, is mere matter of practice, for our own courts to establish; in this they are not necessarily governed by the practice in other states or countries. Here there was no offer to enter a non suit, nor asking for leave, but a mere giving of notice by the plaintiff, that if called he should not answer, but submit to a non *384suit. He was not called or non suited, and he now complains that he was not. The right to demand daily, and to enforce a non suit for non appearance, does not seem to us to bear much upon the question; but this matter is not before us. It is presented only on the certificate of the clerk of the Common Pleas, instead of being placed on the record by bill of exception. We do not see any thing illegal in the receipt, or entry of the verdict.

The omission to find the value of the property tendered, we will advise upon.

The cause was taken under advisement to Medina county, and there decided by judges Wright and Wood.

By the Court. The finding of the jury is for the defendant that he tendered, as in the notice. The law, 29 *O. L.*121, provides that if the jury in such cases find *that the defendant did*tender, *they shall assess the value of the property*tendered, upon which judgment shall be rendered for the amount against the defendant, without interest or costs, unless the defendant forthwith perform his contract, or satisfy the court that he will perform as it may order; and if that is done there shall be judgment for the defendant. The judgment here wás for the defendant for costs, yet he has the property tendered, without delivery, or order, or the value found. We think the judgment erroneous, and it is reversed and remanded for further •proceedings.