Hawkins v. Rapier , 1 Minor 113 ( 1823 )

Opinion of the Court delivered by the

Chief Justice,

In this case it is assigned as Error—

1. That the verdict is not a finding on the issue.

2. That there was no issue.

The plea alleges the payment of $203TVo > part of the Debt — of this the defendant puts himself upon the country. The plaintiffs say, “ they reply” — it might not, perhaps, be a very strained inference that they intended to reply by a similiter. In any view it is but a general replication, denying the matter alleged in bar of part of the claim of plaintiffs ; and, though informal, might be cured by a verdict properly responding to this issue. It is not necessary to the decision of the case, to determine whether the conclusion of the plea be good. It is, however, unusual and informal to conclude to the country, a plea which affirms a new fact in bar.

The issue submitted to the Jury was, whether the defendant had paid #203t0/ü part of the Debt. Does the verdict answer this question ? It finds for the plaintiffs #486 62,}, the residue of the debt in the declaration mentioned, and ^114 89}- damages, &c. The verdict would dispose of the issue if the matter found would properly relate to it. But the sum found varies from, and exceeds the amount in controversy. The question submitted to the Jury was, whether the defendant had paid $203 07. The plea did not deny any more of the claim of the plaintiffs, and they should have taken judgment by nihil dicit for so much as-was not controverted. The verdict does not respond to the issue, but finds matter wholly variant, and which had not been put in issue.

We are therefore of opinion that the first assignment is sustained by the Record. The second has been answered by the remarks made on the first. See Ripley against Coolidge and Bright, and Malone against Donnelly, (ante, p. 11—12.)

It is not necessary to the decision of this case that we should dispose of the other assignments. On some,of them we are not unanimous in opinion. On the first assignment the judgment must be reversed, and the cause remanded.