#### Sydnor v. Burke and Wife.

March, 1826.

Record -Amendment by Court,— Jt is error in a Court, lo amend a record, after the Term at which judgment was rendered.

Same —Same—Case at Bar. — Therefore, if the record omits to state that a plea was entered, and issue joined, the Court cannot, after the Term at which judgment was rendered, direct a plea to he entered, nunc pro tnne upon the evidence of the clerk that a plea was filed, and Issue joined.

Statute of Jeofails — Curative Effect of.* — Quaere, how far the Statute *oí*Jeofails will cure a declaration which sets ont no cause of action

Appeal from the Superior Court of Richmond county.

Burke and his wife brought an action of detinue against Sydnor, for “certain goods and chattels, slaves and stocks, of the value of $2000, to wit; Billy, a slave, of the value of $500; Allen, a slave, of the value of $800; 28 head of horned cattle, of the value of $280; 5 horses, of the value of $250; a stock of hogs, of the value of $20; one set of *blacksmiths’ tools, of the value of $30; and four beds and furniture, of the value of $120.” The declaration avers property in both the plaintiffs, and lays their damages in $500.

There is no notice in the record of any plea, or issue joined, but it is stated that a *78jury was swora “to try the issue joined.” The jury rendered a verdict for a portion of the articles claimed by the declaration, and the Court gave judgment accordingly.

At a subsequent Term, the Court ordered that the plea of non detinet and issue, should be entered nunc pro tunc, in the said action, it appearing by the evidence o'f the clerk, that the said plea was filed and issue joined, but omitted, through mistake, to be entered by the clerk. Sydnor appealed.

Leigh, for the appellant.

Stanard, for the appellee.

*

Pleading and Practice — Nonjoinder of Issue — Effect of Verdict. — It Is well settled, that i£ a verdict has been rendered without any issue being joined, it is a mere nullity, and no judgment can properly he rendered upon it, whether it he a civil or a criminal action. State v. Douglass, 20 W. Va. 777, citing the principal case to the point. To the same effect, the principal case Is cited in *foot-note*to Stevens v. Taliaferro, 1 Wash. 155; *foot-note*to Walden v. Payne, *2*Wash. 1; McMillion v. Dobbins, 9 Leigh 422, 423, and foot-note; Rowans v. Givens, 10 Gratt. 250, 251, and foot-note; Petty v. Frick Co., 86 Va. 505, 10 S. E. Rep. 886; Briggs v. Cook. 99 Va. 275, 38 S. E. Rep. 148; Griffie v. McCoy, 8 W. Va. 206; High v. Peerce, 9 W. Va. 294; Ruffner v. Hill, 21 W. Va. 159; Brown v. Cunningham, 23 W. Va. 111; Hickman v. Baltimore, etc., R. Co., 30 W. Va. 305, 4 S. E. Rep. 659; Hickman v. Baltimore, etc., R. Co., 30 W. Va. 315, 7 S. E. Rep. 461; White v. Emblem, 43 W. Va. 823, 28 S. E. Rep. 762.

*

Judge Green absent.

March 17.

JUDGE COALTER.

Although the record states that the jury were sworn to try the issue joined, yet, unless we can -look to the plea which was directed to be entered nunc pro tunc, at a subsequent Term after the judgment, by way of amendment of the record, there was no plea entered, nor issue made up in the cause. As to the amendment in question, it was not one justified by the Act of Assembly, (1 Rev. Code, ch. 128, sec. 108,) and could not be made at a subsequent Term, independent of that Act, as has been decided in this Court, in many cases. Without deciding, therefore, on any other point made in the cause, the judgment must be reversed for this error, and the cause remanded for a new trial to be had.

It is unnecessary to decide the question arising under the Statute of Jeofails, in this case, {if we could give any opinion *on it, there being no verdict or issue joined), as, whichever way they might be decided, still the cause must go back for the reason above assigned, and the plaintiff will have an opportunity to amend, or the defendant to demur to his declaration,

It may not be impertinent, however, to remark, that if this declaration, on the face of it, shews that the plaintiffs had no-cause of action, as has been contended for, and if nevertheless, such declaration, and the judgment thereon, must be supported, when the jury, on an issue joined, find for the plaintiff; it is a strong illustration of the propriety of a remark made by counsel, some days ago, on this Act, “that counsel in the country, in order to guard the interests of their clients, ought to go constantly prepared with blank demurrers, and put in one in every case where they appear for a defendant; and -that if this practice should be the result of the late amendment to that Statute, it may have a very beneficial effect, by producing more care in declaring, than was necessary even under the Act as it before stood ; and thus preserve in the profession some attention to legal forms.”

JUDGE CABELL.

This is an appeal from a judgment of the Superior Court of Law for the county of Richmond.

Although the record states, that the jury were sworn to try the issue joined between the parties, yet it does not shew that any plea was filed by the defendant, nor that any issue was, in fact, joined.

The counsel for the appellee has exhibited the transcript of an order of the Superior Court, made at a Term subsequent to that at which the judgment was. rendered, shewing that the Court received the evidence of the clerk, that a plea had been regularly filed, and that issue was joined thereon, and directing the plea to be entered nunc pro tunc. But, we cannot regard this transcript as any part of *the record. In the case of Vaughan and Field, ex’ors of Field v. Freeland, reported in a note to 2 Munf. 477, this Court decided that it was erroneous in the District Court, after the term, to amend the record, even by the written minutes of the clerk. It would be much more improper to allow such amendment, founded on the mere recollection and oral testimony of the clerk.

Without deciding any other question made in the argument, I am of opinion to reverse the judgment, on the ground that no issue was joined between the parties.

JUDGE CARR and the PRESIDENT concurred, and the judgment was reversed.*