rent, and concluded issint assets; yet the court judged upon a special matter it was no assets, because the rent ran with the reversion, and so belonged not to the executor. So Pasch. 22. Eliz. Dyer 370. One brought a writ de plegiis acquietandis, and the jury found that the plaintiff was bound for the defendant, as his surety, in an obligation with him jointly and severally, and that being impleaded he prayed a plea, &c., and yet judgment was given against the plaintiff; for as this case is, they were both principal, and neither pledge nor fidejussor to the other. And this action lies not but where one is named expressly as surety in the bond, which was not so in this bond. [53 a] Debt 1 Cr. 453. Co. L. 282. a. 3 Cr. 209. 2 Ro. 706. 2 Lev. 3 Cr. 882. 84. 1 Ro. 787. And Pasch. 2 and 3 Ph. and Mar. Dyer 115. b. upon an obligation for performance of covenants, whereof one was that he should do no waste, and issue taken 100. Yel. 148. whether he felled ten oaks, it was found that he had not felled twenty oaks, but he had felled ten, and it was adjudged for the plaintiff; yet, if upon the first point it had rested there, it had been found for the defendant. 2 Cro. 453. Note, that ten did not prove the issue of twenty, lit- Post 72. & 3. erally, but it proved the breach clear within the issue. Quare, if it had been oaks for ashes, or the like; for either had been waste; and the very issue in contemplation of law is waste or no waste, and the rest is of a certainty of form; so in Townesend's case, Plo. 111. whether the The second First, lay this question upon the first point. Verdict out of As the second branch of the first point, alias capias can be taken within the issue. for a ground, that if the jury find anything that is merely out of the issue, that such a verdict, for so much, is utter- 11 Co. 13. a. ly void and of no force, (1) though it conclude in gen (1) If a jury, in their verdict, find facts which are not properly submitted to them, or which they have no authority to find, and also find the regular issue, such extrajudicial finding will be rejected as surplusage, and judgment will be rendered on that part of the verdict in which the regular issue is found. 6 Mass. 304, Bacon v. Callender. Thus if a jury, in Massachusetts, express in their verdict that the plaintiff shall have full costs, in a case where by law he is not entitled to them, that part of their verdict which relates to costs will be merely void and may be rejected as surplusage. 11 Mass. 358, Lincoln v. Hapgood. So if a jury in New the issue void. Owen 91. 1 Inst. 227. a. ac cord. 47. E. 3. 19. a. [53 b] eral, for or against the plaintiff or the defendant; whereof the reason is plain, which is, that the jurors are tryers of matter of fact put in issue between the parties, and their oath, which contains their commission is, that they shall truly try the issue between party and party. And so is the ven. fac. ad triand. exitum, non ad triandum jus, as in a writ of right, so that whatsoever they do try besides the issue is per non juratos, as a cause judged by the court that hath no jurisdiction of the cause, coram non judice, and utterly void, for a verdict must not be to the action, that might have been pleaded, but to the issue, which is pleaded, and in their charge. And if that other point had been pleaded it might have had another answer and evidence. And therefore the entry of the verdict in the record is, quid ad veritatem de infra content. jurati dicunt super sacramentum suum, &c. And so upon the matPalm. 535, 145. ter, if that extravagant part of the verdict be false, it is no perjury, neither doth any attaint lie upon it, for there is no party grieved nor anything to be restored, neither can it be used as in evidence in any other trial, because there is no redress if it be false. 11 Co. 13. a. 3 Inst. 167. Yel. 72. Plo. 96. a. [54] And I hold it plain, you cannot justify to call him perjured upon such a point being false. And so it is concerning a point of discourse by judges out of the point of the judgment, it may be a judicious and studied opinion, and of some authority, but it is no part of the judgment, for no writ of error lies upon it, and therefore it ought not to preoccupate or prejudicate a judgment. 1 Cr. 174. Co. And therefore 39 E. 3. 38. a writ of annuity was brought upon a prescription, the defendant traversed the prescription, whereupon issue was taken and found for the prescription; but further, the jury found that there was nothing of annuity behind; yet judgment was given for the plaintiff. L. 227. a. 3 Cr. 546. 47 E. 3. 19. a. York find, in an action for an escape, that the prisoner returned voluntarily before suit brought, but that the defendant had not filed, with his plea, an affidavit that the escape was without his knowledge or consent, (see Sess. 36. c. 67. s. 23.) the finding as to the want of an affidavit, must be rejected as surplusage, this being a matter beyond the issue to be tried, and belonging exclusively to the court. 16 Johns. 307, Richmond v. Tallmadge. See post 112, Tasker v. Salter. So 43 Ass. p. 1. In assize the defendant pleads himself a villain; the plaintiff replies that he was free, and issue taken upon it; the jury found him a villain, and added that the plaintiff was seized and disseized by the defendant, as the writ imported, and that the lord of the villain had not entered. And yet it was adjudged against the plaintiff; for jurors are bound to their issues, but judges have power over the whole matter, and that hath also his bounds, as to the matter within the record not at large. [54 a] But howsoever the verdict seem to stray, and conclude Verdict informal. Apr. 262. not formally or punctually unto the issue, so as you can- 1 Cr. 7. not find the words of the issue in the verdict, yet if a verdict may be concluded out of it to the point in issue, the court shall work it into form, and make it serve. (2) And (2) This doctrine is recognized, and the case to this point cited with approbation by the court, in the case of Porter v. Rummery, 10 Mass. 64, and also in Hawks v. Crofton, 2 Bur. 698. The latter was an action of trespass vi et armis, and special damages alleged. The defendant pleaded, as to the vi et armis, not guilty, on which issue was joined. As to the special damages he pleaded son assault demesne, to which the plaintiff replied de injuria &c., on which issue was likewise joined. The jury returned a general verdict of guilty of the trespass within written.' Judgment was given for the plaintiff, which was affirmed on writ of error, on the ground that the jury could not have found thus unless the defendant had failed in proving his justification. This case is considered as settling the principle that where the general issue and special pleas are pleaded, and a verdict is found for the plaintiff on the general issue only, without regarding the other issues, if it is apparent that the verdict could not have been so found if the special pleas had been supported, the omission is merely matter of form, and is not a ground for impeaching the verdict. Accordingly in an action of replevin, where the defendant pleaded 1st. Non cepit; 2dly. property in a stranger with an avowry for return, to which the plaintiff replied and took issue, and the jury found a verdict for the plaintiff on the issue of non cepit, without saying anything as to the other issue, judgment was given for the plaintiff, on the ground that the jury would not have found such verdict if the defendant had made out his justification. 14 Johns. 84, Thompson v. Button. See also 9 Mass. 316, Hodges v. Raymond. But it is not admissible to extend a verdict by construction unless it appears to be the necessary conclusion from the whole record; and if there be several issues, and a verdict good as to one and imperfect as to the others, a ven. fac. de novo goes to all. 10 Mass. 68, Porter v. Rummery. A jury must pass upon all matters submitted to them, and cannot find a verdict on one part of the plaintiff's demand without deciding on the other; 2 Johns. 210, Brockway v. Kinney; and they must, substantially, pass upon all the issues joined in the cause. Thus in debt on bond, the defendant pleaded, 1st. Non est factum; 2d. Performance of the condition, upon which several issues were joined. The jury found a verdict for the plaintiff on the first issue, but said said nothing as to the second, and a judgment rendered on such verdict was held to be erroneous. 4 Johns. 213, Van Benthuysen v. De Witt. Plo. 92. b. [54 b] therefore 47 E. 3. fo. 29. in a præcipe one came in and said that the tenant was tenant for life, and prayed to be received for reversion. The defendant on the other side pleaded that the tenant in the action had fee, whereupon issue was taken that he had not fee, and it was found that neither the tenant nor he in reversion had ever anything; which is clean besides the issue, and against the reason of the receipt. And it was adjudged that he should be received; for by this verdict it was found, that the tenant had not fee, which was all that was put in issue, for both the demandant and the party praying receipt, allowed tenant to the action, which must be at least a freehold, Plo. 87. a. Co. and that being agreed by the parties, the jurors could not falsify. And therefore the book 19 E. 2. F. Receipt 178., being adjudged contrary, I do condemn. Cr. Car. 76. 174. 5 Co. 30. a. b. L. 125. b. One takes benefit of a verdict for another.. Co. L. 126. b. 56. 8 Co. 133. b. Ant. 14. Plo. 66. b. Sid. 76. Post. 164. But on a contrary, where an issue is well found it shall sometime relieve a stranger, as in the case of Tilly and 2 Cr. 134. Apr. Woody, 7 E. 431., where an action of trespass was brought against two for taking of goods, the one pleaded not guilty, and it was found against him, and the other pleaded that the plaintiff had given him the goods, whereupon issue was taken, and that found against the plaintiff, and therefore judgment was given against him; for the issue was well found, and the action being the same, and both the defendants parties to it, and the court being apprized that the title was against the plaintiff, no judgment could be given for him against the other. But if the plaintiff had brought his actions severally, against either defendant, (as he might), he would have had his judgment, though perhaps the defendant might have been relieved by audita querela upon the other judgment; tamen quære of that. Quære. Now admitting that a mere foreign matter is void, yet in this case, to the second branch of the first point, I am of opinion that alias capias doth maintain the plea of the defendant, which is but thus; that whereas the plaintiff had set forth his judgment, and demands why he should not have execution against the executor, the defendant shows that the plaintiff had sued forth against the said T. Jackson, in his life, quoddam breve de capias &c., a certain writ of capias ad satisfaciendum super judicium prædic- [54 c] tum, &c. virtute cujus bevis the sheriffs took him and had him in execution for the same debt and damage, and that he died in execution, &c. And the plaintiff says that the sheriffs, virtute brevis præd. de cap. ad satisfaciendum, prædictum Tho. Jackson non ceperunt, and thereupon issue is taken; so he denies that he was taken virtute cujusdam brevis de cap. &c. cludes an al. cap. that was pleaded a cap. general. [55] In every act there is a substance, a body, a principal, Verdict inand there are certain accessaries or accidents; and concerning this, it is a true axiom, unumquodq. maxime est id quod est principalius in ipso, and therefore things are nominated ex eo quod sunt per se, non per accidens. Now when the substance is capias, whether it be the first, alias or pluries, those are but distinctions of number in order; there might have been more colour, if he pleaded it an al. cap. where it was the first, for that had not been true in words though in substance, and to the effect of the execution it had been all one: but here as it is full to the substance, so it is not untrue, nor so much as mistaken in a word, for it is a capias with a little addition that may be spared. And capias is the genus, and genus continet plura quam species, sed species non continet plus quam genus. 36 H. 6. 2. A recognizance pleaded, the issue, nul tiel record, Plowd. 14. b. and the recognizance which was certified was upon condition, and yet good. 36 E. 3. 5. In an account the defendant pleaded, that he accounted before R. and W., upon which issue was joined, and it was found that he accounted before R. only, and it was adjudged for the defendant. 16 Ass. 19. In assize the tenant vouched, the vouchee pleads that heretofore the plaintiff brought an assize against his father, who pleaded, that the plaintiff did enfeoff him by his deed, and it was so found by the assize, and he demanded judgment, and upon issue nul tiel record, the record was, that the assize was against the father and mother, and yet adjudged no failer. But the verdict must not wholly depart from the word of the issue. 40 Ass. 31. In an ass. the defendant pleaded the deed of the brother Post. 13, 113, of the plaintiff with warranty, and the plaintiff denied |