error relied upon by the plaintiff in error, was that the jury had not found the amount of assets in his hands to be administered.

Marshall, Ch. J., delivered the opinion of the court. "The verdict ought to have found the amount of the assets in the hands of the defendant to be administered. The cases cited to show that the judgment must be for the whole sum, if the verdict find any assets, have been overruled. The law is now well understood to be, that the executor is only liable for the amount of assets found by the jury. The defendant in error relies on the form of the issue. She contends that, as the replication alleges that the defendant has assets more than sufficient to satisfy the debt, the finding of that issue for the plaintiff below, is in effect finding, that the defendant has assets more than sufficient to satisfy the debt, and if so, it is wholly immaterial, what the real amount of the assets is. But if this were the issue, and the demand were 500 dollars, if the jury should find that the defendant had assets to the amount of 499 dollars, the judgment must be for the defendant. But the law is not so. An executor is liable for the amount of assets in his hands, and not more. The issue really is, whether the defendant has any, and what amount of assets in his hands." And judgment was reversed.

5. If the jury find a verdict in the alternative, or in terms so imperfect and uncertain that judgment cannot be entered upon it, the verdict will be set aside. "A verdict," says Lord Coke, "finding matter uncertainly or ambiguously, is insufficient, and no judgment shall be given thereupon; as if an executor plead pleinment administre, and issue is joined thereupon, and the jury find that the defendant have goods within his hands to be administered, but find not to what value, this is uncertain, and therefore insufficient." Thus if there is a

verdict for plaintiff, that defendant owes the debt and one shilling damages, a venire facias de novo shall go, for the jury should have assessed the real damages on the breaches assigned, and the plaintiff cannot take a verdict for the whole debt.(1)

In Hambleton v. Veere.(2) Action on the case for the loss of the service of an apprentice for the whole residue of his term of apprenticeship. The jury assessed damages generally, and judgment was arrested. Afterwards it was moved for the plaintiff that he should have judgment, because the damages assessed by the jury, were assessed only for the wrong by the defendant, in procuring the apprentice to depart out of his service, and not for the loss of service. But the court were unanimous in denying the motion, on the ground of uncertainty, remarking upon the case in terms illustrative of the rule generally. “That it is not ascertained by the verdict for what time the damages are assessed, unless for all the residue of the term, for they are assessed generally; and if they should not be intended for all the residue of the term, for what time shall they be intended? For a month, or two months, or until the exhibiting of the bill, or until the giving of the verdict? Certainly no one can say: and therefore the assessing of the damages is either bad, if they are assessed for all the residue of the term, or uncertain, if they are assessed for any other time.

In Morrice v. Prince, in error.(3) Action for a rent charge, where the defendant in error claimed for life under the will of Edward Prince. Verdict that the defendant in error was seized of the rent charge—had demanded it, and plaintiffs in error refused to pay, and thereby disseised defendant, and that there were arrears of thirty years and a half. And judgment was reversed on the ground that it

(1) Co. Litt. 227. (2) 2 Saund. 171.

(3) Cro. Car. 520.

did not appear by the verdict when the devisor died, and therefore the certainty, as to the ground of arrears, not ascertained.

In Broome v. Rice,(1) in trespass; the defendant justified under a distress for rent, and showed that he gave notice according to the act of parliament, had the goods appraised by persons sworn before the head borough, and sold, and the surplus left in the hands of the constable. The plaintiff replied de injuria sua propria, and there was a verdict for the defendant. But upon motion, the court set aside the verdict, and ordered judgment to be entered for the plaintiff, and a writ of inquiry of damages to issue; for by the defendant's own showing, the sale cannot be justified, it appearing there was a constable present, so that the head borough had no power to administer the oath.

In Bishop v. Kaye,(2) in error, the plaintiff declared in assumpsit for money lent and advanced. Plea that the promises were made by Bishop jointly with one Crowther. Replication that the promises were made by Bishop alone, and verdict that Bishop did undertake and promise in manner and form, &c. Plaintiff in error assigned for cause, that the jury merely found that the defendant did undertake and promise, without finding that he alone did undertake and promise. It was contended that the jury had found substantially, that the promise was made by the defendant below, alone and not jointly. And per Abbott, Ch. J., upon this point, I think that the judgment cannot be supported, for the verdict does not distinctly find the issue joined between the parties. Bayley, J.-I am of opinion, that the judgment must be reversed, upon the ground that the verdict does not distinctly pronounce upon the issue joined, between the

(1) 2 Str. 873.

(2) 3 Barn. & Ald. 605.

parties. The declaration charges that the defendant promised. Now that allegation may be supported either by proof of a joint or separate promise. The defendant however pleads that he promised jointly with another. The issue to be tried was, whether he promised jointly or alone. The jury have found merely that he promised, without saying whether alone or jointly. The verdict therefore does not pronounce upon the only point in issue between the parties. It is necessary that it should be shown by the verdict, that the jury have taken into consideration the point in issue."

In Pettibone v. Gozzard.(1) Ejectment for two pieces of land. Plea, the defendant had done no wrong or disseisin, and verdict that the defendant had done wrong and disseisin to the plaintiff, as to one piece of the land particularly described in the verdict, and found for the plaintiff. But the jury, in their verdict, made no mention of the other piece of land. A motion in arrest was made, that the verdict ought to have answered the issue as to both pieces of land. By the court."The verdict must be an answer to the whole of the matters put in issue. The jury have found that the defendant had done wrong and disseisin as to a part of the land; as to the other piece of the land, they are silent; whereas they ought, by their verdict, to have answered that part of the issue."

In Miller v. Hower, (2) it was held by the supreme court of Pennsylvania, that a verdict in debt, finding no specific sum, must be set aside as being a void verdict, and that the defect could not be supplied by a writ of inquiry to assess the damages.

But where in an action of ejectment, the jury found a verdict for the plaintiff, and that he should pay the defendant a just compensation for improvements, the same court

held in Allen v. Flock, (1) that the part of the verdict awarding a just compensation was uncertain, and therefore void; but intimated that it would not vitiate the part which was certain, the verdict being complete without it.

The same rule prevails in this state. In Malin v. Malin, (2) which was an action in ejectment, a question arose upon the attestation of a will; and among other things, the jury were charged whether the will had been altered after its execution, and by whom. The jury gave a verdict for the plaintiff, adding, "that the will had been altered by some interested person." The defendant moved to set aside the verdict, and for a new trial. After remarking upon other points taken in the case, Platt, J., who delivered the opinion of the court, concludes: "In this case the judge properly directed the jury to find whether the will had been altered after its execution; and if so, by whom. I think the jury have not answered that question with sufficient certainty and precision. The verdict is, that the will has been altered by some interested person. The words, some interested person, do not necessarily designate Rachel Malin. Those words are as applicable to the lessor of the plaintiff as to the defendant. The verdict is uncertain on that point, and a new trial ought therefore to be granted."

So, if upon a special verdict, there has been uncertainty occasioned by a mistake in a material fact, as in Jackson v. Cannon.(3) The parties had, without trial, agreed upon a special verdict; and the plaintiff had agreed to a certain deed, to be produced by the defendant and made a part of the verdict, and an entry according to the deed, material to the question upon the statute of limitations, which arose in the cause. The argument upon the verdict had been several times noticed by the plaintiff, and at a previous term,

(1) 2 Penn. Rep. 159. (3) 2 Cowen 615.

(2) 15 Johns. Rep. 293.