mitted to recover, and the five years vests a per inutile non vitiatur; and that which is title in the defendant. But this inference would be very unjust, in relation to a plaintiff who has committed no laches, but, on the contrary, has brought his suit within one month after he lost the possession, merely because the time of rendering the verdict was protracted, by the delays of the courts, and the management of the defendant, to a longer period than five years from the inception of the defendant's possession.

These principles, and these cases then, clearly prove, that the Jury were limited by the pleadings, in this case, to the proof, of a possession, as at the time of the institution of the suit, and had no right to receive evidence, or find a verdict, touching the non-existence of that possession, as at the time of rendering the verdict. That was a point ulterior to the one made by the pleadings. It was not in issue, and therefore it was irregular to offer evidence in relation to it, or find it by the verdict.

If the plaintiff could have foreseen, from the pleadings, that such evidence would have been offered, he might have repelled that evidence, and the result might, as to the actual death of the negro, have been entirely different. We can, therefore, not know this fact, in this case, and are to decide the case, as if it were not in the record. That fact is, in truth, not before us, which is precluded by the issue between the parties, and to which the evidence and verdict have been illegally and irregularly extended. We are also to bear in mind, that although the negro is emphatically found to be dead, it is but little more than finding, that she was not in the possession or 356 *power of the defendant, at the time of rendering the verdict. It is unimportaut from what cause this want of possession proceeded, whether from the natural death of the subject sued for, or, (for example,) by wilful destruction of it, by the defendant after the institution of the action. In the last case, it would scarcely be contended that the defendant should avail himself of his wrong, to defeat the plaintiff's action, if this fact were even found by a special verdict.

not within the issue will be rejected as sur-
plusage, the jury having nothing to do
with it. (7 Bac. p. 20.) Thus in an action
of assumpsit against an executor, on a
promise by his testator, and issue was
taken on the plea of non assumpsit, the
jury found for the plaintiff, but they like-
wise found, that the testator was dead be-
fore the day on which the promise was
alleged to have been made. The verdict
was held to be good, and the last part re-
jected, on the principle of its being
357 surplusage, and not within *the issue.
(7 Bac. 22.) In principle, there is no
difference between this case, and the one
before us. Again, it is a rule, that if the
jury find one thing, which is contrary to
what is confessed in the pleadings, the ver-
dict, as to so much, is bad, and it is to be
rejected as surplusage; for the jury have
nothing to do with what is confessed or ad-
mitted by the pleadings. (7 Bac. 41.) In
the case before us, the pleadings, are not
only restricted to the date of the writ, as
to the fact of possession, but the existence
of the subject seems admitted. On these
pleadings, the defendant may object, that
he does not detain the negro, but that an-
other man does; or he may say, that he
does not detain the plaintiff's negro, be-
cause she is his property, and not that of the
plaintiff. But on this issue, it could never
for a moment be considered, that the ex-
istence of the negro was denied.
If a
tenant in dower pleads, that the demand-
ant's husband did not die seised of the
premises, and issue is joined on that plea;
and the jury find that he died seised, but
further find, that the estate was not liable
to dower, the latter part of the verdict is
bad, as finding what is virtually confessed
by the plea. (7 Bac. 41.)

Again; it is held that the plea of non cepit in replevin, confines the issue to the taking, and allows the property to be in the plaintiff; and, therefore, no evidence shall be received, or verdict found on this plea, to disprove the property of the plaintiff. (2 Espin. 11.) So in debt on a bond to perform an award made by J. S. the plea was, that J. S., made no such award, and If this evidence, therefore, ought not to issue; the jury found that J. S. made the have been received, nor the verdict extended award, but also found matter in avoidance to the present point, what is to be done in thereof; the last part of the verdict was the actual case before us? The verdict in held to be bad, and was rejected, because question is a general verdict, and not a it was contrary to the issue. (7 Bac. 41.) special one. It is not a special one, because These cases, by analogy, completely justify it submits no question of law to the deci-a rejection of the last part of the verdict sion of the court. It is not a special verdict, for the further reason, that a Jury ought not to submit, in such a verdict, a matter which is not pertinent to the issue, and much less one which is entirely out of that issue. (7 Bac. 4.) If the issue relates to the possession, as at the date of the writ, it is entirely foreign to that issue, to inquire thereof, as at the time of finding the verdict.

This verdict, however, is not bad on account of its finding, also, this matter, which is not in issue in the cause, after having found the negro in question "for the plaintiff." The finding of that which is within the issue, is not vitiated by finding that which is not. In such cases utile

before us; as being contrary to what is put in issue, and is admitted by the pleadings.

358

*The decisions of this court completely shew, that the verdicts of juries may be extended, by the clerk, from the general form in which they are found. This verdict, so extended, would be, that the defendant does detain the negro in question, and that she is of the value of $375. The subsequent finding of the fact, that she is dead, is clearly repugnant to such extended finding, and is to be rejected. By the first part of the verdict, the jury not only find the result in favor of the plaintiff, but find the fact also which justifies that result, and which is repugnant

to, and overrules the latter finding. That would not change the issue made up becomplete finding by them, so compounded of law and fact, is not to be varied by any subsequent, and irregular finding, on which they have erected no counter conclusion nor authorised the court to draw one. Such an authority can only be devolved on the court by a special verdict.

940

does not give the absolute property to the first, he has given an absolute bill of sale for them, is in devisee from the death of the testator. itself fraudulent.

DOWER.

A provision in lieu of dower will not be disturbed Virginia with slaves to reside, to take certain oaths so far as it is only equivalent to dower.

Blanton v. Taylor,

ELEGIT.

209

EXECUTOR.

Ibid.

The statute of 1792 requiring persons coming into &c., or else the slaves will be entitled to freedom, has no application to the case of a citizen of Virginia removing to another state with slaves, and after having resided there some time, bringing them back to Virginia, before the statute was repealed. 231

Barnett v. Sam,

Back interest by way of penalty for not paying punctually, will be relieved against in equity. Mosby v. Taylor,

ISSUE.

172

Where a court of equity directs an issue, and the testimony is conflicting, the verdict should be conclusive. Carter v. Campbell,

159 An issue will be directed to try whether a will alleged to be lost was ever in fact executed, and what were its provisions.

Brent v. Dold.

211 A general replication to the plea of payment, does not constitute an issue, unless so considered and treated by the parties. 998

Nadenbousch v. M'Rae,

JUDGMENT.

The judgment of a foreign court of admiralty is not conclusive that the property and owners are enemies, in a suit between the underwriters and insured.

Burke v. Granberry,
See Notes-negotiable, 3, 4.

LAND.

16

A sale of land by specified boundaries, "supposed to be" a given number of acres, at a fixed price per acre, is a sale by the acre and not in gross. Carter v. Campbell,

159

Where land is sold at different prices for different parts, a Jury should assess the compensation for a deficiency in quantity.

The landlord of a tenant at will may peaceably enter the premises, but an illegal search for stolen goods makes him trespasser ab initio. Faulkner v. Alderson,

LIEN.

221

It may be pleaded after a new trial has been Trespass for the mesne profits of land recovered granted, the Jury having found against the prein ejectment. lies against an executor. sumption of payment from the staleness of the demand. which presumption prevented its being The 64 ch. 104, 1 Rev. Code, is an extension of pleaded on the former trial. Ibid. the 4th Edw. III. c. 7, de bonis asportatis.

943