McCoy v. Rives , 9 Miss. 592 ( 1844 )

Mr. Justice Thacher

delivered the opinion of the court.

This was a writ of error to the circuit court of Kemper county.

An execution was levied upon two'slaves, Charles and Fanny, which were claimed by a party not named in the execution. An issue, under the statute, for the trial of the right of property was made up, and the jury returned a verdict that “ the following described property mentioned in the execution, was not the property of the claimant, and describing the property as slaves, Charles and Lucy, assessing the value to each. The judgment follows the verdict in setting forth the names of the slaves. There was no finding by the jury upon the right of property in the slave Fanny, or of her value, and there was a finding upon the right of property in a slave Lucy, and of her value, who was not mentioned in the return of the sheriff upon the execution, nor in the issue for the trial of the right of property.

A verdict is bad, if it vary from the issue in a substantial manner, or if it find only a part of that which is in issue; and, when it is confined only to a part of the matter in issue, no judgment can be rendered on the verdict. 2 Wheat. 221. If a verdict finds matter out of the issue, it is void for so much.

In the case at bar, no judgment can be rendered as it stands.

Judgment must be reversed and new trial granted.