Finding matter not in the issue.

forming his promise; this is ill, because it doth not directly answer the issue, but by implication.(1)

So, if debt be brought for £20, and the verdict be, that the defendant owes the plaintiff £40, the plaintiff shall not have judgment, for it cannot be the same contract which is entire.(2) So, if a man bring an action of debt, and declares for £20, and the jury upon nil debet pleaded, find that the defendant owed £40, this is ill; for the plaintiff cannot recover more than he demands, and in this case he cannot recover what he demands, because the court cannot sever their judgment from their verdict.(3) But the modern practice is to enter a remittitur on the record of the excess, which cures the verdict and makes the judgment. valid.

Therefore, if the jury find a direct verdict upon the issue, and also something beyond it, the latter will be rejected as surplusage, and will not be allowed to vitiate the verdict, conform ably to the maxim utile per inutile non vitiatur.(4)

In West v. Monson,(5) in an assize against West, he pleaded he was not tenant of the freehold named in the writ, and also there was no tort. The jury found that the plaintiff below was disseised by the defendant, as was alleged in the writ, unless certain provisions in the will of Robert Monson, which they set forth in hoc verba, conveyed a good estate in the lands to the defendant below, and therefore prayed the advice of the court. Judgment was given for the plaintiff, and error brought, upon the ground that the verdict was imperfect, not finding the tenancy of the freehold; and that the finding as to the will [*137] was out of the issue. And all the justices besides

Gawdy resolved, that the verdict was found for the plaintiff; and that which came after the nisi, being imperfect, was idle and void,

(1) Yelverton, 78.

2) 2 Rol. 702.

(3) 3 Salk. 376.

(4) Hob. 54.

(5) Cro. Eliz. 480.

Finding matter not in the issue.

and judgment should be given upon the precedent verdict; and held the verdict being perfect before, that which comes after the nisi, being idle and void, shall never hurt it, but judgment shall be given upon the verdict which is good.

The rule has been illustrated thus:-If the issue be, whether A. and B. enfeoffed, if it finds that A. and B. did not enfeoff; but that A. alone enfeoffed, the last clause is void.(1) So, a verdict, that an executor, administravit vel ad usum proprium disposuit is good, though in the disjunctive, and one way had been sufficient. So, if it finds the prescription alleged, it is good, though it finds more.(2)

In Richmond v. Tallmadge in error. (3) Action of debt against the sheriff on an escape of one Brockway. The special verdict stated that Brockway, who had been admitted to the jail liberties, after leaving the limits, voluntarily returned and was on the limits of the county of Cayuga, at the time of the commencement of the suit, but that the defendant below had not accompanied his plea with an affidavit, that the escape was without his knowledge or consent, nor filed any such affidavit. The jury further submitted, that if it should seem to the court that the defendant owed to the plaintiffs the debt, or any part thereof, then they found that the defendant owed the plaintiffs, 5,294 dollars and 24 cents, parcel of the said debt. The judgment was entered generally, that the plaintiffs recover their debt and damages aforesaid.

It was insisted, on the part of the plaintiff in error, [*138] that *the judgment of the Supreme Court ought to be reversed, because the jury had found the voluntary return of the prisoner before suit brought, which was a full defence to the action, although no affidavit had been filed, and for the variance between the judgment and verdict.

The Chancellor, in delivering his opinion, which prevailed, after

(1) 2 Rol. 706.

(2) Hob. 49.

Finding matter not in the issue.

commenting upon the case, concludes thus: "The fact found by the jury, that the plea had no such affidavit, was a finding not within the issue before them. The jury had nothing to do with. the question touching the legal requisites of the plea. That was a matter exclusively for the court. If the jury find more than is contained in the issue, that excess is to be rejected as surplusage. The case is then reduced to this point, whether to an action of escape, a plea of a voluntary return by the prisoner within the liberties, before suit brought, and that plea certified by the jury to be true in point of fact, be not a valid defence? Under the decisions of this court, there can be no doubt of the validity of such a defence; and I am therefore of opinion, that the judgment of the Supreme Court ought to be reversed."

So in Roane v. Drummond.(1) Verdict for the plaintiff £50, that being the debt in the declaration mentioned, and $60 in damages. The judgment was rendered for those two sums; and afterwards, upon an appeal, it appeared that the debt in the declaration mentioned was £50, &c. The Court of Appeals was of opinion, that the verdict found in substance that the debt mentioned in the declaration had not been paid, as alleged by the plea; and the only incongruity was, in stating it to be £50, which was surplusage. The finding was sufficient to have justified a judgment for the debt in the declaration mentioned, and the $60 damages. And in this view of the case, the

error being in favor of the defendant, could not be [*139] complained of by him.

And in Bacon v. Callender.(2) Action of entry sur disseizin in the post, in which the demandant demanded six undivided seventieth parts of a messuage and land in Boston, and counted on her own seisin within thirty years, and on a disseisin by one Lemuel Cox, after which the tenant entered. Plea the general issue, and before a verdict was taken, motions were filed, according to the practice of the court; upon which the jury found for the de

(1) 6 Randolph, 182. (2) 6 Mass. Rep. 303.

Finding matter not in the issue.

mandant, and likewise the increased value of the premises, which had not been given them in charge, and formed no part of the issue. The counsel for the demandant now moved for a new trial, because the jury had in their verdict, found the increased value, whereas the tenant, and those under whom he claims, had not claimed to hold the demanded premises by virtue of a posses sion and improvement thereof, but had claimed the same, under the same title under which the demandant claimed to hold them, viz.: the deed of one William Lowder; and therefore the jury had no legal authority under the statute to inquire into the value of the premises, whether improved or unimproved. But the court held, that if this position was correct, the extra-judicial finding of the jury was no cause for a new trial, it must be considered as surplusage, the jury having found the issue, which depended on facts wholly unconnected with the value of the premises, whether that value was increased by the tenant's improvements or not, and that on this part of the verdict, judgment might be entered."

So, if the jury, travelling out of their province, undertake to liquidate or award the costs, as in Lincoln v. Hapgood.(1) Ver

dict for plaintiff, $5. The counsel for the plaintiff' [140] moved that a new trial should be granted, because *of

the smallness of the damages assessed by the jury. They argued that the jury, having expressed in their verdict, that the plaintiff should have full costs, although such expression could have no legal effect or operation; yet that by rendering judgment for the plaintiff for five dollars damage and one-fourth of that sum as costs, the real intentions of the jury, in finding their verdict, would be wholly counteracted and frustrated, if the verdict were permitted to stand. Instead of affording him compensation for the injury he had proved himself to have suffered, such a judgment would be a severe penalty upon him for seeking his legal remedy. But Per Curiam.-"The jury went out of their province in awarding costs for the plaintiff. That part of their verdict is merely void."

Finding only part of the issue.

A similar rule prevails in the courts of this state, where the costs are given by statute.(1) As often as jurors have ventured out of the record upon the question of costs, which has been not unfrequently, they have been reminded that it is a subject, which the law has placed out of their province, depending wholly upon the nature of the action, and the amount of their verdict.(2)

III. Finding only part of the issue.

If the jury find only part of the issue, judgment cannot be entered on the verdict. It is void for the whole, and a venire de novo will be awarded.

It is thus laid down by Lord Coke :-" A verdict that finds part of the issue, and finding nothing for the residue, this is insufficient for the whole, because they have not tried the whole issue wherewith they are charged. As if an information of intrusion be brought against one, for intruding into a messuage and one hundred acres of land, upon the general issue, the jury find against the defendant for the land, but say nothing for the house, this is insufficient for the whole, and so was it twice adjudged."(3)

*In Miller v. Trets.(4) Information was exhibited [*141] against the defendant, by the plaintiff in the Court of Exchequer, for selling lace and silks. Upon issue joined, the jury found the defendant guilty as to selling the lace, &c., but said nothing as to the silks, and judgment for the informer. Upon error brought, this omission of the jury in the verdict was assigned for error. A motion was made for leave to amend; but denied, because it was not amendable, and therefore the judg ment was reversed.

(1) Vide Gra. Prac. 574.

(2) 1 Cowen, 160.

(3) Co. Lit. 227.

(4) 1 Lord Raym. 324.