it was argued provisionally, that the defendant should produce the deed afterwards, for the examination of the judges, as a part of the verdict. On its being produced, the lessor of the plaintiff discovered, as she alleged in her affidavit, that the description in the deed was broader than she originally supposed, and that the admission of the entry, according to this deed, was by mistake, and affidavits were read on both sides to the point of the alleged mistake. And Per Curiam." The verdict was drawn up and agreed upon without trial. The affidavits are conflicting as to the extent of the entry and claim, under this deed, which we perceive will be a material point of inquiry, in reference to the statute of limitations. The verdict being by consent, an amendment upon this motion, is out of the question. We amend those verdicts, where there has been a trial, upon which the facts have come under the view of the court and jury; but in such cases we have something to amend by. Here there is nothing. We cannot settle this case between the parties. We must either refuse our interposition entirely, or send the cause to a jury, and we are inclined to put the facts in a train for decision, by adopting the latter course."

So, in Mirwan v Ingersol.(1) On certiorari, it appeared, that in the court below, while the counsel for the plaintiff was engaged in drawing a special verdict, the defendant's witness appeared, and his counsel then asked leave to appear, and try the cause, stating that he could prove the truth of his plea. This was denied by the judge, and the plaintiff's counsel hastily drew a special verdict, in these words: "And the jury find that Thomas Ingersol does not appear, nor offer any evidence to prove the allegations contained in his plea." This was received and entered as the verdict of the jury. A motion was made to set aside

(1) 3 Cowen, 367.

the verdict. The ground taken was that the verdict was void, and motion granted.

In Blanks v. Foushee,(1) on appeal. In this case the plaintiff declared on a promissory note and for money had and received. The jury found a verdict for the plaintiff, and assessed his damages to £243 16s. 4d. with interest until paid, subject to the opinion of the court, upon the operation of the law upon certain written documents and testimony, oral and written, set forth in the verdict, but without finding what facts were in the opinion of the jury proved thereby. And Per Curiam. "This court is of opinion that the said judgment is erroneous in this, that it is founded not on written documents and facts, found by the jury, and submitted to the court, for their judgment as to the law, but on the testimony, oral and written, of the witnesses reported by the jury, leaving it to the court, as well to infer the facts proved by the witnesses, (which the jury alone were competent to) as to decide the law arising thereon." And for this reason judgment was reversed and a new trial awarded.

In Booth v. Armstrong, (2) the plea set forth sundry judgments against the executor, and that he had not any goods of the testator except to a specific amount, which was insufficient to satisfy the judgments. The plaintiff replied that the executor had goods more than sufficient to satisfy the judgments, wherewith he might have satisfied the debt demanded. And there was a general finding for the plaintiff. The court of appeals was of opinion that the verdict was uncertain and insufficient, in not finding that the executor had goods and chattels which were of the testator at the time of his death, in his hands to be administered, more than sufficient to satisfy the judgments set forth in the plea, wherewith he could have satisfied the

(1) 4 Munf. 61.

(2) 2 Wash. Rep. 301.

plaintiff's demand: or the value of the said goods and chattels, if not sufficient to satisfy the said demand. The judgment was therefore reversed, the verdict set aside, and the cause remanded to the court below.

So, in an action for freight and demurrage, where the jury rendered their verdict in these words, "we find for the plaintiff, and are of opinion that the plaintiff has already received out of property of the defendant payment in full for the amount of freight to which he is entitled," the verdict was set aside for the same cause.(1)

6. An argumentative verdict is void, and will be set aside on motion, and a new trial granted.

Thus if the issue be that a copyhold granted for three lives is heriotable; and the jury find that there never was any such grant in that manor, for it is not found directly that it is not heriotable, but only by argument.(2)

So, on an issue that by the custom a grant may be to three for the lives of two, a verdict that a grant for three lives is good, will be void, for it does not find the issue but upon the inference that, the grant of a less estate is good where the custom warrants a greater estate. (3) If the issue be, whether a copyhold may by custom be granted in tail, a verdict, that it may be granted in fee is void. So, in debt, on a special plea non est factum, for that the bond was read as an acquittance. Verdict, that he is lettered, and knew it to be a bond, and gave it voluntarily, is not good, for it ought to find directly that it is his deed.(4) And if the defendant pleads solvit, and issue is thereon, a verdict that the defendant owes the money is not good, for it finds only by argument quod non solvit.(5)

So, in trespass for taking and cutting his leather, the de

(1) 1 Serg. & Rawle, 367. (4) 3 Rol. 693.

(2) 2 Rol. 693.
(5) Ibid.

(3) Ibid.

fendant justifies as a searcher, &c. and that he in searching it, cut it more scrutatoris. The plaintiff replies, of his own wrong absque hoc, that he cut it more scrutatoris; verdict that he cut it of his own wrong is not good, for it does not find the issue but by argument.(1)

In Shelley v. Alsop,(2) in an action on the case brought on a promise supposed to be made by the defendant, on non assumpsit pleaded, and tried in a base court in the town of Stafford, the jury found that the plaintiff, by nonperformance of the promise ex parte of the defendant, had sustained damage 50s. and assessed costs, and judgment accordingly, and upon error brought thereon, it was reversed on the first motion, by Fenner, Yelverton, and Williams: "for the verdict given by the manner is no verdict, for they have not found the matter in issue, with which they were charged, viz: whether the defendant assumpsit, necne; so it is altogether uncertain and imperfect. For this finding by the manner, that the plaintiff has sustained damage 50s. by non-performance of the promise, is but a finding of the assumpsit by a foreign implication, which is not good on any general issue, no more than in trespass on non cul. pleaded; the jury find that the plaintiff is damnified £5 by the entry of the defendant; this is not good, for they ought to give their verdict precisely according to their charge."

These authorities are recognised in a recent case in a sister state, in Gerrish v. Train. Trespass de bonis asportatis. Plea, that the property of the goods, at the time of the taking, was in one Stevens, and not in the plaintiff; that the defendant was a deputy sheriff, and that he took the goods by virtue of a writ of attachment against Stevens, in favour of one Shattuck. Replication, that the defendant took the goods of his own wrong, traversing the property's being in Stevens, and concluding with a verifi

cation. Rejoinder, that the property was in Stevens, and concluding to the contrary, and issue joined thereon. Verdict, guilty, and the jury assessed damages. On motion for a new trial, on the ground that the verdict did not follow the issue, and was argumentative, a repleader was awarded; the court observing-"That the finding must be direct, and cannot be made good by inference. Thus if the defendant pleads solvit and issue is thereon. Verdict that the defendant owes the money, is not good, for it finds only by argument quod non solvit. So, in trespass, for taking and cutting leather, the defendant justifies, as a searcher of leather, &c.; and that in searching, he cut it more scrutatoris; the plaintiff replies of his own wrong absque hoc, that he cut it more scrutatoris; verdict that he cut it of his own wrong, is not good. In trover, on not guilty pleaded, the verdict was that the defendant converted the goods to his own use; and this was held bad, though equivalent to a verdict of guilty, by necessary inference."(1)

In Gramvel v. Rhobotham.(2) Action in trover. Plea, not guilty, and verdict for the plaintiff. Upon which error was brought, and plaintiff in error assigned, among other causes, because the issue being not guilty, and the jury not having found upon this issue, but only that the defendant detained and converted the goods to his own use, the verdict was void. And of that opinion was a majority of the But some of the justices were of opinion the ver

court.

dict was amendable.

And there is little doubt, in conformity to the modern practice, such an amendment would now be allowed. It has long been well settled, that the courts will give validity to verdicts when they perceive the substance of the issue to be contained in the verdict, however rude or informal

(1) 3 Pick. 124.

(2) Cro. Eliz. 865.