So 43 Ass. p. 1. In assize the defendant pleads himself [54 a] 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. 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 forin, 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. [54 b] Plo. 92. 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. [55] In every act there is a substance, a body, a principal, Verdict inand there are certain accessaries or accidents; and con- cap. that was pleaded a cap. cerning this, it is a true axiom, unumquodq. maxime est general. 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 [55 b] Post. 209. the deed, and it was found not to be the deed of the brother, but the deed of the father, and it was adjudged by good advice, as the book saith, against the defendant. And I am of clear opinion, that if the jury had found, that he had been taken with a capias pro fine, or by a capias utlagat. after judgment, and the plaintiff had prayed that he should remain for his satisfaction, that yet this had been against the defendant; for though he were taken by a capias, and were also holden ad satisfaciend. yet it was not quoddam bre. de cap. ad satisfaciend. which is a kind of writ certain, yet it amounts to so much in effect, and the prayer for his remanding is a kind of taking of charge of the nature of the writ. On the other side, if the sheriff had had this Jackson in execution by one cap. at another man's suit, and then this cap. had been delivered unto him, and he had also charged him with that, I hold that that would have maintained his issue; for though he were taken before, yet this is a new taking in the law. (3) (3) There are two sorts of allegations in relation to matters of record and other written documents; the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved. Where a fact is alleged, not as a description of a record, but for the proof of which it may be necessary to produce a record in evidence, it will be sufficient if the fact be substantially proved by the record produced; but where the allegation purports to describe the contents of a record, and to set it forth with a prout patet per recordum, the least variance will be fatal. Thus an allegation of a precept of the king may be supported by showing a bill of Middlesex; 2 Str. 1069, Harris v. Bernard; but an allegation that an action was depending in his majesty's court of the Bench at Westminster is not sustained by proof of a pluries bill of Middlesex; because the words, at Westminster, designates, by its locality, the Court of Common Pleas. 3 Mau. & Sel. 166, Impey v. Taylor. So if it be alleged that an acquittal happened on a day laid under a videlicet, and no reference be made to any record, a variance in the day will not be fatal. Therefore where, in an action for a malicious prosecution, the declaration stated that afterwards, to wit, on the morrow of the Holy Trinity, &c. the plaintiff was duly acquitted,' the allegation was held to be proved by the production of the record of nisi prius, though it thereby appeared that the acquittal was on Tuesday next after the end of Easter term; for the substance of the allegation was only that he was acquitted before the commencement of the action. 9 East 160, Purcell v. Macnamara. So the statement of a fi. fac. to have been for a debt, and 80s. damages sustained by reason of the detention thereof, when the writ itself mentioned the 80s. to have been given for the damages sustained, as well by reason of the debt as for the costs and charges of the suit, was held to be no variance. 9 East 298, Phillips v. Bacon. So in an action for an escape, the plaintiff stated the substance of the execution in his declaration, without setting it out in hæc verba, but in the execution produced in evidence there was a variance of The third question upon the first point. mon intent. As to the third branch, concerning the faults of averment, [55 b] to apply the capias that is found to the case in question, if this uncertainty had been in the plea of the defendant, it would no doubt have made it vicious, but being in a 2 Saund. 97. special verdict, it must be taken according to their inten- per Keeling. Verdict special tion, which is according to the common intent. There- taken to comfore when the question is, whether he were taken by force of the capias mentioned in the plea, which is named without addition, and they give their verdict that he was not taken by virtue of the capias ad satisfaciendum within mentioned, but that he was taken by force of an alias capias ad satisfaciendum, not mentioned in the record, at the suit of the same person, against the same person, of the same teste and return, of the same sum of debt, damages and judgment, it appears plainly, that they understand it to be the same; for it is against sense, that either the jury would have made, or the court have suffered, a special verdict, as a doubt, if this alias cap. had been upon another judgment, or between other parties. If a plea of a capias may be maintained by an alias Post. 262. 5 Co. capias, which being the only doubt, the court must make 130. one cent in the amount of damages and costs; and it was held to be immaterial. 5 Johns. 89, Bissell v. Kip. In a similar action the plaintiff alleged a judgment recovered in the Court of Common Pleas held at S. in the county of W. and in the record produced at the trial, the place or town where the court was held was not mentioned, and the variance was held to be immaterial. 9 Johns. 82, Page v. Woods. See also 8 Johns. 26, Rodman v. Forman. 1 Cowen 309, Jones v. Cook. 1 T. R. 235, Rex v. Pippet. 2 Barn. & Cres. 2, Draper v. Garrat. In these cases, however, if the plaintiff had taken upon himself to set forth the record in hæc verba, or to describe it by a prout patet per recordum, it seems that he would have been bound to a more literal statement. Thus an action of debt for £860 12s. 1d. founded on a decree in chancery described with a prout patet, &c. is not supported by the record of a decree for £860 12s. 1d. with interest from a certain day to the day of rendering the decree. 1 Cranch 282, Thompson v. Jameson. Sed vide 3 Barn. & Cres. 2, Stoddart v. Palmer. So where a writ was described in terms, when sued out and when returnable, and on production it appeared to be returnable on a different day from that stated in the declaration, the court held the variance fatal, though the day of the return was held under a videlicet. The return day was considered material in this case because it was part of the description of the writ, which could only be proved by a writ returnable on the same day. 1T. R. 656, Green v. Rennet. See also 2 Esp. N. P. C. 726, Brown v. Jacobs. 1 Camp. 404, Rex v. Taylor. See also 3 Cranch 208, Wilson v. Codman. As to contracts see post p. 72, Pope v. Skinner, and note. Sed vide 13 East 547, Judge v. Morgan. 97. a. 1 Cr. 22. |