D. Messner v. William J. Hutchins, 17 Tex. 597

Wheeler, J. The affidavit is in literal conformity to the Statute. It is only when the defendant is about to remove his property beyond the State, that the plaintiff is required to make oath, that he will thereby probably lose his debt. (Hart. Dig. Art. 25.) There is nothing in the objection to the sufficiency of the affidavit made to obtain the attachment. Nor is the objection to the bond well taken. It was not necessary that the attorney should produce his power of attorney upon the motion to quash. It was sufficient' that it was produced upon the trial.

In Drake on Attachments, it is said, “ Where the bond purports to be the act of the plaintiff, by an “ attorney in fact, the authority of the attorney will be presumed-, “ at least on the hearing of a motion to quash the writ on ac- “ count of the insufficiency of the bond. If it is intended to question the authority, it must be done by a plea to that effect. “ For the agent’s authority is a matter of evidence aliunde, and “ forms no part of the bond ; and on a motion to quash or dis- “ miss, the Court will not inquire into the fact of agency, but “ will presume it.

The utmost extent to which the Court would “ go in such a case, would be to rule the party to produce the “ power of attorney under which he acted, within a reasonable “ time.” (Drake on Attachments, Sec. 135 ; 9 Porter, 320 ; 2 Ala. 326.) To the objection that the return of the Sheriff did not sufficiently identify the goods levied on by virtue of the attachment,,it might be a sufficient answer, that no objection was taken to the levy or return, in the Court below. The validity of the levy was not questioned in'the motion to quash the attachment, [Mr.

Justice Wheeler probably referred to the plea in abatement.—Reps.] nor in any other manner, nor is it brought in question by the assignment of errors. But had the objection now urged in argument been taken, it could not have prevailed: The return endorsed on the writ sufficiently describes and identifies. all the property levied on except the goods in the store; and the want of certainty in that particular is supplied by the agreement, showing that the officer did make and file an inventory of the goods as a part of his return.

It was not necessary, nor, I presume practiacble, to indorse upon the writ the entire return. It is sufficient that the offi cer made a return, to which there was no objection, showing a valid levy. There is no error in the judgment of the Court overruling the motion to quash the attachment. The propriety of amending the judgment is more questionable.

Article 786 of the Digest is relied on as authorizing the amendment. But the condition which it prescribes, as the basis of the exercise of the power, is where “ there shall be “ among the records of the proceedings in the suit, in which “ such judgment or decree shall be rendered, any verdict or in- “ strument of writing, whereby such judgment or decree may “ safely be amended.” The verdict which the jury first proposed to render must have been the basis of the amendment which was made. But that verdict was not received.

The jury were made to retire to consider further of their verdict, and ultimately returned a different verdict. Hence what they first proposed did not become and was not their verdict. It was a mere proposal or offer to return a verdict, which the Court would not receive, and not being received and recorded as the verdict of the jury, it had no validity, force or effect as a ver-' diet or proceeding in the cause.

It was not “ any verdict or instrument of writing” “ among the records of the proceedings in the suit ;” and could no more constitute the basis of a judgment, or an amendment of the judgment, under the Statute, than any other matter of fact outside of the record. Yet the amendment was, in effect, the rendition of judgment upon it. The verdict of the jury, which had been received and recorded, was set aside and disregarded in the rendition of judgment, upon the application to amend. This was upon the assumed ground that the jury had made a miscalculation of interest in the rendition of their verdict.

But this the Court could not know ; for the verdict did not inform the Court by what means the jury arrived at their conclusion. It did not necessarily follow, that because, six hours before, the jury had proposed, a certain verdict, they were still of the same mind, and intended to return one substantially the same as that first proposed. They may have changed their minds, and concluded to find against the plaintiff as to a part of his demand. Until their verdict was returned and received by the Court, they were at liberty to change it.

If the verdict had contained the basis of the calculation made by the jury, or had afforded data, by which their intention could be certainly ascertained, the mistake, if any, in their calculation, might have been corrected, and the amendment would have been proper. But having returned a verdict for the plaintiff for a sum certain, after it had been received and recorded, the Court had no power over it to change it. If the finding was erroneous, and contrary to the evidence, the only way to correct it was by a venire de novo, or a new trial.

The Court had not the power to change its substance, so as to make it conform to what might be supposed to be the intention of the jury ; for that would be to assume their exclusive prerogative, and find for them the verdict which they ought to have found. The verdict of the jury must be the sole exponent of their intention.

When the jury proposed to return a verdict, which only required the calculation of interest to render it sufficiently certain, the Court might very properly have directed the clerk or the attorney to make the calculation for the jury, and if assented to by them, it might have been received as their verdict. But when the jury were sent back to consider further of their verdict, they were free to reconsider and change it as they saw proper. What they had done, or had proposed to do, was not binding upon them, and was of no force or effect whatever.

The verdict which was finally returned and recorded, could not be modified or changed by reference to it. And to render judgment for a sum greater than the jury, by their verdict, found to be due, was to disregard their finding, and, in effect, to give judgment without a verdict. The judgment rendered upon the application to amend, must therefore be reversed and set aside, and the judgment first rendered upon the verdict, and which conformed to it, reinstated ; unless the appellee shall see proper to confess errors, in order that the case may be remanded for a new trial.