#### *Blanks’s Administrator v. Foushee.

Argued December 21st, 1812.

Verdict — Uncertainty—Case at Bar. — A verdict submitting to the court, for its judgment as to the law, certain documents and other evidence, oral and written, (without finding the facts established thereby,) is too uncertain and insufficient for a j udgment to be founded thereupon.

See Henderson v. Allens, 1 H. and M. 235, to the same efiect.

The declaration in this case contained two counts, the first of which was in the following words ; “William Foushee complains of John Blanks, in custody, &c. of a plea of trespass upon the case ; for, that whereas one Thomas Hooper, on the 27th day of July, *1801,*at the county aforesaid, made his note in writing called a promissory note, to one Hugh Wyllie, and thereby promised to pay to the said Hugh Wyllie, or order, on or before the first day of December then next following, the sum of two hundred and forty-three pounds, sixteen shillings and four pence, for value received in crop tobacco ; that the said Hugh Wyllie, afterwards, to wit, on the-day of-in the year aforesaid, at the county aforesaid, and before the said note became payable, assigned the same to the defendant, or order ; that the defendant afterwards, to wit, on the same day and year last aforesaid, at the county aforesaid, assigned the said note to the plaintiff, of which the said Thomas Hooper, afterwards, to wit, on the same last mentioned day and year, had notice ; that the said note was not paid according to its tenor and effect, to the plaintiff, when the same became payable ; but the payment thereof was refused, although duly demanded ; and, afterwards, to wit, on the 25th day of February, in the year 1802, the said note being still unpaid, the said Thomas Hooper became a bankrupt, and was thereof, afterwards, to wit, on the-day of-in the year last mentioned, duly declared, under a regular commission for that purpose ; whereby he failed to pay any part of the said note ; of which the defendant after-wards, to wit, on the-day of-at the county aforesaid, had due notice; whereby the said defendant became liable to pay the said note to the plaintiff, and, being so liable, afterwards, to wit, on the day and year last mentioned, undertook and promised *33the plaintiff to pay him the amount thereof, when required,” &c. The second count was for money had and received, in the usual form. *The declaration concluded with charging a breach of promise, and laying the damages at five hundred pounds. Plea non assumpsit.

The jury found a verdict for the plaintiff, and assessed his damages to 2431. 16s. 4d. with interest from the 1st of December 1801, (that being the day on which the note mentioned in the declaration was payable,) until paid; subject to the opinion of the court upon the operation of the law upon certain written documents, and testimony, oral and written, set forth in the verdict; — but without finding what facts were, in the opinion of the jury, proved thereby.

“The matters of law, arising upon the points reserved at the trial, being argued, it seemed to the District Court, that the law was for the plaintiff.” Judgment was therefore entered in his favour; from which the defendant appealed to this court.

Wickham for the appellant.

Wirt for the appellee.

Wednesday, March 3d, 1813.

The president pronounced the following opinion of the court.

“This court (not deciding whether the first count in the declaration would, or would not, be good after verdict, that point being immaterial at present, there being one good count therein, on which, or on such amended declaration as the Inferior Court may authorize, the defendant may hereafter sustain his action,) is of opinion that the said judgment is erroneous in this, that it is founded, not on written documents and facts, found by the jury, and submitted to the court for their judgment as to the law, but on the testimony, oral and written, of the witnesses, reported by the jury ; leaving it to the court, as well to infer the facts proved by the witnesses, (which the jury alone were competent to,) as to decide the law arising thereon.”

Judgment reversed, and new trial awarded.