#### *Brown, Executor of Innes v. Hendersons.

Argued Wednesday, November 15th, 1815.

s. Pleading and Practice — Pleas of Payment and Fully Administered — Verdict— Sufficiency.* — Issues being joined on the pleas oí payment, and fully administered; if the jury find “for the defendant, he having fully administered all the assets which came to his hands,” the verdict is defective in not being responsive to the issue joined on the plea of payment.

3. Same — Defective—Verdict—Objection in Appellate Court. — In such case the judgmentwillbe reversed by the Appellate Court, although the objection was not taken in the court below; and a venire facias de novo will be directed as to both the issues.

This was an action of debt in the County Court of Stafford, against the appellant, upon a bond of his testator. He pleaded “payment by the testator,” and fully administered ; on which pleas issues were joined. The jury found a verdict “for the defendant, he having fully administered all the assets of his testator which came into his hands to be administered.” Judgment thereupon was rendered, for the defendant; which, upon an appeal, was reversed, and a new trial awarded, in general terms, by the District Court; upon the ground, “that the issue upon the plea of payment in the record set forth had not been tried.” From this judgment, the defendant appealed.

Wirt, for the appellant.

The verdict was sufficiently responsive to both the issues, being in fact equivalent to a finding “for the defendant, and that the defendant had fully administered.” Such must have been the meaning and intention of the jury. In Garland v. Bugg, 1 H. & M. 374, a general verdict for the plaintiff was considered sufficiently responsive to two issues, one of which was joined on a special plea.

But if indeed the verdict was defective, the plaintiff should have moved for a new trial, or in arrest of judgment. He did neither, and ought not to be permitted to make the objection, for the first time, in the Appellate Court.

Williams contra.

The Appellate Court is fully competent to decide on this point, notwithstanding the objection was not taken in the court below. The jury evidently did not consider the plea of payment under any aspect. They do not say, “we find for the defendant, and we also find that the defendant has fully administered,” but “we find for the defendant, he having fuJly administered which plainly shews *that they consider only the plea of fully administered, and meant to assign the reason for their verdict.

This is not a captious or frivolous objection ; for if the jury had found that the debt had not been paid, the plaintiffs might have got their money, if assets had afterwards come to the hands of the defendant; for, in that case, the judgment would have been for the debt payable when assets ; but, as it now stands, the plaintiffs must lose their debt at all events, though it never has been paid.

Wirt, in reply.

The latter part of the verdict cannot be understood as merely assigning the reason for it. This is a form of finding unknown to the law. To justify the court in setting a verdict aside on the ground contended for, it must plainly appear that the jury omitted to find upon one of the issues. If their meaning be doubtful, such a construction as will support the verdict should rather be made, than such as would overthrow it.

But, since every plea was a separate defence, the finding of the jury upon the plea of fully administered, ought to stand at any rate, and the cause be sent back to be tried as to the other plea only. Delay having taken place, perhaps the testimony iii support of the plea of fully administered cannot now be had.

Williams. In Totty’s exor. v. Donald & Co.(1) (ante p-) the cause was sent back to be tried as to both issues. The delay which has happened has been occasioned by Mr. Wirt’s client.

Thursday, November 16th, 1815,

*

Pleading and Practice — Failure of Verdict to Respond to Issues — Effect.—See *foot-note*to Hite v. Wilson, 2 Hen. & M. 268, containing extract from Danville Bank v. Waddill, 87 Graft. 451, in which principal ■case is cited. This same extract is quoted in Nicholas v. Kershner, 20 W. Va. 262.

(1)

 Note. See also Callis v. Waddy. *2*Munf. 512.

the president pronounced the court’s opinion, that there is no error in the judgment of the District Court, which is therefore affirmed.