#### Boatright v. Meggs.

Argued, Wednesday, March 3d, 1813.

i. Detinue — Evidence—Conclusive Proof — Instructions.* — In detinue for slaves, proof on the part of the defendant that the plaintiff brought to his house one of the slaves who had run away, and then said he had given them to the defendant’s wife, is not conclusive in his favour: but the court may instruct the jury, that, if, from the evidence, they believe the plaintiff had given the slaves to the defendant, they should find for him.

3. Same — Instructions.†“lf it be stated in a bill of exceptions, that the plaintiff proved the delivery of the slaves to the defendant, to remain in his service until the plaintiff should call for them, and then to be returned; the court may with propriety instruct the jury, that, such possession, “which was acquired under an agreed condition at the time.” is not to be regarded as adverse, unless the defendant prove circumstances to make it so.

3. Same — Verdict—Correction of Error — Reference to Declaration.‡ — If the jury find forthe plaintiff the slaves in the declaration mentioned, and, proceeding to state their names and several values, recite the name of one of them erroneously; suck error should be corrected by reference to the declaration.

See Royal] v. Eppes administrator of Royall, *2*Munf. 479; Holladay and wife v. Littlepage, 539.

4. Same-Verdict — Responsiveness.§ — Issues being joined on the pleas of non detinet, and the act of limitations; a verdict, that the defendant doth detain the slaves, in manner and form, &c. is sufficiently responsive to both issues.

See Garland v. Bugg, Ill. & M. 374.

This was an action of detinue for several slaves in behalf of Joel Meggs against Charles Boatright. Plea non detinet and the act of limitations. At the trial, “the defendant introduced *a witness, who said that the defendant had been in possession for upwards of seven years, and that, during- that time, the plaintiff had brought to the defendant’s house one of the negroes who had run away, and then said he had given the negroes to the defendant’s wife ; and the defendant moved the court to instruct the jury that, if they should believe that the plaintiff did say that he had given the negroes to the defendant’s wife, they should find for the defendant. The court refused so to instruct the jury ; hut instructed them that if, from the evidence, they should believe the plaintiff had given the slaves to the defendant, they should find for him. The plaintiff proved the delivery of the negroes, in the declaration mentioned, to the defendant, to remain in his service till the plaintiff should call for them, and then to be returned ; that they remained in the possession of the defendant for about fifteen years uncalled for, and were then called for by the plaintiff, some short time before the institution of this suit, when the defendant refused to deliver them ; whereupon the defendant moved the court to instruct the jury that the possession aforesaid was adverse, agreeably to the pleas and issues in this cause ; but the court instructed the jury that the said possession, which was acquired under an agreed condition at the time, was not to be regarded as an adverse possession, unless the defendant prove circumstances to make it adverse.”

Bills of exceptions were filed by the defendant to both these opinions of the court. The names of the slaves in the declaration mentioned were Sarah, Nelly, and Marinda. The verdict was, “We of the jury do say that the defendant doth detain the slaves in the declaration mentioned in manner and form, &c. to wit, Sarah of the value of 901., Molly of the value of 751., and Marinda of the value of 251.” The judgment was for the slaves aforesaid, in the usual form ; to which the defendant obtained a writ of supersedeas from this court.

Nicholas, for the plaintiff in error.

The court erred in the instruction stated in the first bill of exceptions. It was erroneously drawing a distinction between a gift to the defendant’s -wife, and a gift to himself ; leaving a doubt on the minds of the jury, whether a gift to the wife, and a gift to the husband were equipollent. The court should not merely have negatived the proposition of the defendant, but should have said that, if there were proof of a gift, either to the wife, or the husband, it would be sufficient.

2. The court ought not to have instructed the jury that the gift was conditional.

3. The verdict is for a slave not named in the declaration. The allegata and probata must agree in all cases, and especially in detinue, in which the specific thing is to be recovered. If a verdict varies from the issue in a matter of substance, it is bad.(a) And this defect is not cured by the act of Jeoffails,(b) which only provides for the case of an omission to find as to part of the slaves. The finding for the plaintiff a slave not demanded in the declaration must be a fatal error.

*644. The jury have said .nothing as to the issue on the plea of the act of limitations, but only as to that on non detinet, A venire facias de novo ought therefore to be awarded, (a)

Call, for the defendant in error.

The cifcumstance that the name 'of Molly, instead of Nelly, is inserted in the verdict is evidently a mere mistake of the clerk. The Jury have found the slaves in the declaration mentioned. If they had said nothing more, that would have been sufficient.

The first instruction requested was too broad ; — that a mere declaration by the plaintiff that he had given the slaves, (however confronted by circumstances,) was conclusive. The Judge has only said that the jury were to consider all the circumstances; it would have been error if he had told them what verdict they were to find: he could not decide on the weight of testimony, but only on principles of law.

The gift was expressly upon a condition, which constituted the defendant trustee for the plaintiff. The act of limitations could not run, since no adverse possession appeared. The defendant requested the court to instruct the jury that this conditional possession was to be-considered adverse or ^hostile. In Smith v. Walker, 1 Call, 29, this court considered the statement in the bill of exceptions, “that the testimony contained in it was all the evidence in the cause, except what proved the bond paid,” conclusive to shew that such other testimony was adduced. So here, the parties themselves have stated in the bill of exceptions that the plaintiff proved the delivery of the negroes to the defendant on a certain condition. The Judge has not decided the facts, but only referred to the testimony.

The case of Garland v. Bugg, 1 H. & M. 374, is a sufficient answer to the fourth point of Mr. Nicholas. The plea here is non detinet : it has been again and again decided, that adding the plea of the act of limitations is unnecessary in detinue.

Nicholas, in reply.

The plea of non detinet does not necessarily involve that of the act of limitations. That plea, having been put in separately, must be disposed of.

The verdict for Molly instead of Nelly is a fatal error. The object of the declaration is to give notice to the defendant of the slaves claimed. The plaintiff cannot recover a different family, or distinct slaves. There has been no suggestion of diminution or error in copying this record. A venire de novo cannot be awarded for Nelly, the slave omitted; because the act of assembly declares that the plaintiff’s right to a slave omitted in the verdict shall be barred. Neither can judgment be entered for Molly, the slave inserted; because the jury had no right to find a slave not demanded in the declaration.

Judge Brooke suggested that, as the error was only in the recital of the names after saying “we find the slaves in the declaration mentioned,” it might be cor-, rected, there being something to amend by.

Nicholas. The jury may have been told that the plaintiff in his declaration meant Molly, though by mistake he had claimed Nelly; and their verdict may have designedly varied *from the declaration for that reason : if so, they attempted to correct an error committed by the plaintiff or his counsel, which they had no power to do. A verdict cannot be amended by reference to the declaration, but only by the minutes.

Friday, January 21st, 1814,

*

Detinue. — ftee monographic *note*on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.

†

 Instructions. — See monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192. The principal case is cited on this subject in Brooke v. Young, 3 Rand. 113.

‡

 Verdict — Correction of Error--Reference to Declaration. — To justify the court in refusing to enter up a judgment on a verdict, it must not only be erroneous, but the error must be such as could not be corrected by a reference to the declaration; thus, where the jury found “for the plaintiff the slaves in the declaration mentioned,” and proceeded to state their names and value, but recited the name of one ot them erroneously, it was held that this was not a fatal error, as it might be corrected by reference to the declaration. Williams v. Ewart, 29 W. Va. 669, 2 S. E. Rep. 886, citing the principal case.

§

 Verdict — Responsiveness — Immaterial Issue.— Where there are several issues made up on several pleas ot the defendant, one of which is faulty and immaterial, a verdict for the plaintiff on the material issues is good though there is no finding on the immaterial issue. Ray v. Clemens, 6 Leigh 600, 603, citing principal case and Mackey v. Fuqua. 3 Call 19, to sustain the proposition. See also, *foot-note*to Ray v. Clemens, 6 Leigh 601.

(a)

 7 Bac. 22 Title Verdict, better (O.)

(b)

 Key. Code, 1st vol. p. 112, sect. 37.

(a)

 Butler v. Parks, 1 Wash. 76; Hites’s heirs v. Wilson & Dunlap, 2 H. *&*M. 268.

the president pronounced the court’s opinion.

“The court perceives no error in the instructions to the jury in either of the bills of exceptions mentioned. The jury having found for the plaintiff the slaves in the declaration mentioned, the misnomer of Nelly in the recital of their names in the verdict is not material, nor is the verdict repugnant, or contradictory to any fact previously found : the jury expressly refer to the declaration for the names of the slaves claimed by the plaintiff, and obviously intended to recite them truly in their verdict, but committed a mistake, and inserted the name Molly instead of Nelly, which ought to have been corrected by rendering the judgment for slaves in the declaration mentioned, according to their first finding.

“On these grounds the court is of opinion that the judgment of the Superior Court be reversed with costs; and this court proceeding to give such judgment as the said Superior Court ought to have rendered, it is considered that the plaintiff recover against the defendant the slaves in the declaration mentioned, if to be had; if not, their respective values by the jurors aforesaid assessed ; which is ordered to be certified to the said Superior Court.”