#### *Thomas*J. *Dyson*v. *Anthony G. Leek.*

If the plaintiff in an action of trespass to try title, suffer a verdict or against him, or suffer a non-suit, or discontinue, or otherwise let fall his action, he is required by the Act of 1744, within two years after such determina- , tion of the first, to commence a second action for the recovery of the land, the subject of the first suit; and if he fail to do so, he is, after that period, barred and precluded of his right and title; and the same, as against the plaintiff, is finally and absolutely vested in the defendant.

If the verdict finds for the plaintiff a part of his claim, the defendant is concluded to that extent; and the plaintiff is concluded as to the remainder; and the judgment for the plaintiff for the part recovered, is a judgment for the defendant, in other words, a judgment against the plaintiff, for the part not recovered; so that to a second suit founded on the same cause of action, the defendant may plead the former recovery in bar.

*Before*Richardson, J., *at Edgefield, Spring Term,*1850.

This was an action of trespass to try titles. Theland claimed by the plaintiff was.described in the declaration in this case, as containing “two hundred and eighteen acres, more or less, situate in the District and State aforesaid, on a branch of Wilson’s Creek, on the Anderson road, adjoining lands of said plaintiff, Daniel Proctor, Temple Hargrove and H. H. Mays.”

The defendant relied upon the plea of former recovery. The plea set out a former case to try titles between the same parties, reciting a description of the land sued for in that case, and also the verdict of the jury. The following is the description of the land: “ One thousand acres, (of land,) more or less, adjoining lands of Robert Williamson, William Mays, Temple Hargrove, the estate of William Ross, Daniel Proctor, and other lands of the said plaintiff, on Saluda river.” The verdict was in these words, “ We find for the plaintiff all the land mentioned and described in the plat of re-survey of A. R. Able, included within blue lines, on said plat, ana one hundred and thirty-eight dollars for damages; the portion included within red lines on said plat, and marked at the corners A B C D, is not found for plaintiff, and this latter portion contains 218 acres.” This verdict was rendered at March Term, 1846. There was an appeal which was heard and dismissed at May Term, 1846. The present action was begun 13th February, 1849.

The only judgment entered up in the former case was by the plaintiff for the land recovered, and damages and costs.

Upon an inspection of the record, referred to in the plea of former recovery, and after hearing argument upon the point, the Circuit Judge was of opinion, that under a proper con*142struction of the Act of 1744, the verdict in the former action was a bar to the further prosecution of this case, and the order of the Court was, that the plea of former recovery be sustained.

The plaintiff appealed and moved the Court of Appeals for a new trial, on the' following grounds:

1. That it did not appear, by inspection of the record of the former suit, nor by any proof offered, that the land which was the subject matter of that suit, embraced the tract in controversy in the present suit.

2. That in the former suit, verdict and judgment did not pass against plaintiff, nor did he suffer non-suit, nor discontinue, or otherwise let fall said suit.

3. That the verdict in the former suit was not in favor of defendant, as to the land now in controversy; and if it were, the verdict could not, under the pleadings, be offered in evidence, unless judgment thereupon in favor of defendant had been entered up, which was not done.

4. That by the just construction of the Act of 1744, it is only the verdict, judgment, non-suit, discontinuance or other letting fall of a *second suit,*which bars the plaintiff from another action of trespass to try titles.

*Griffin &p Wardlaw,*for the motion.

*Gray Sp Bauskett,*contra.

*Curia, per*Frost, J.

The construction of the Act of 1744, made in the cases of *Lynch*v. *Withers,*and *Porter*v. *Maxwell,*and uniformly recognized in'our practice, is now too firmly incorporated in our law to be questioned. In these cases it was decided, that if the plaintiff in an action of trespass to try title, suffer a verdict or judgment against him, or be non-suited, or discontinue, or otherwise let fall his action, he is required by the terms of the Act, within two years after such determination of the first, to commence a second action, for the recovery of the land, the subject of the first suit, and if he fail to do so, he is, after that period, barred and precluded of his right and title; and the same, as against the plaintiff, is finally and absolutely vested in the defendant.

The tract of land, demanded in this action, is proved by the record of the former recovery, to be a part of the tract of land claimed in the first suit. By the certified plat it appears that the “portion included in the red lines, and marked at the corners ABC D," and by the verdict “ is not found for the plaintiff,” contains “ two hundred and eighteen acres, situate on a branch of Wilson’s Creek, on the Anderson road, and adjoins lands of the plaintiff, Daniel Proctor, Temple Hargrove, and William Mays.” The description of the land claimed in this action, is identified, in every particular, with *143the parcel of land described in the plat by red lines, and therein called the Owens tract; except that in the plat, the land of William Mays is called for, instead of “H. H.Mays .” But this variance is not important, because the tract of William Mays, if it be not the same as that of H. H. Mays, lies between the land of Daniel Proctor and Temple Hargrove; and by these last two boundaries, the location of the Owens tract is so ascertained, as to admit of no doubt of the identity of the Owens land with that described in the declaration.

The remaining question is, whether the record of the first suit exhibits a verdict and judgment against the plaintiff, within the meaning of the Act of 1744. The declaration in the first suit described a tract of one thousand acres, including the Owens tract. The plea was the general issue, and evidence was offered of the plaintiff’s title to the Owens tract. The verdict found for the plaintiff, part of the land described, and with respect to the Owens tract, expressly finds, that it “ is not the land of the plaintiff.” This special finding is unusual and unnecessary. It is a conclusion of law, when part of an entire tract claimed, is found for the plaintiff, that .he has no title to the remainder. A. general verdict for the defendant, in an action of trespass to try title, expresses and imports no more, than that the plaintiff has not proved a title to the land claimed by his action. No judgment could have been entered by the defendant against the plaintiff, on the verdict in the first suit. In no case where the verdict finds for the plaintiff a part of his demand, can judgment be entered for the defendant against the plaintiff, for the remainder. In this respect, it makes no difference whether the plaintiff sues for one thousand dollars, or one thousand acres of land. A general verdict for the plaintiff, is conclusive evidence against the defendant, of every thing which is put in issue by the pleadings and evidence ; and *e converso.*In like manner if the verdict finds for the plaintiff a part of his claim, the defendant is concluded to that extent; and the. plaintiff is con-eluded as to the remainder; and the judgment for the plaintiff for the part recovered, is a judgment for the defendant, in other words, a judgment against the plaintiff, for the part not recovered ; so that to a second suit, founded on the same cause of action, the defendant may plead the former recovery in bar.

The motion is dismissed.

Evans, Wardlaw & Withers, JX, concurred.

*Motion refiised.*