1811. But the present question is, whether an erroneous in- OCTOBER, struction upon an abstract question be not sufficient error to set aside the verdict. This instruction was clearly Williams The broad proposition, “no bailee,” &c., Moore. cannot be understood as pointing to any particular bailee; but must comprehend bailees of every descrip. tion. V erroneous. Saturday, December 12th, the President pronounced the Court's opinion, that the judgment be reversed, the verdict set aside, and the cause remanded to the Superior Court of law, with directions to that Court to instruct the jury that, “ if the injury to the slave complained of was not imputable to the neglect of the ap. pellee, he would not be responsible therefor, unless he expressly agreed to be so liable; and that, as no such agreement is charged to have been made, he is only bound (according to the present declaration) for ordinary care of the slave in question; that is, such care' as any man of common prudence, and capable of governing a family, takes of his own concerns; and that he is there. fore answerable for ordinary neglect only.” Tuesday, Nov. 24th, 1812. Wilkinson's administrators against Bennett. 1 must be re Р P h ed on the M. 161-164. If a jury be IN debt on a bond, in behalf of Thomas Bennett against empanneled " to try the William Nelson, and Martha, his wife, late Martha Wil. issue joined,” when, in re. kinson, administratrix of Willis Wilkinson, deceased, the Ality, no issue is joined, the defendants pleaded, “ that all and singular the goods and , judgment chattels of the said Willis Wilkinson, which have come to versed, and their hands to be administered, have been by them duly the verdict set aside, not. and actually administered, to the amount of 1,724l. 58., withstanding it was against in the following manner; to wit: in discharge of a judga the party who failed to ment in favour of Matthew Maben, of 901. 1s. 10d. ; in meet, by a negative on payment of taxes to Zachariah M-Clenny, to the amount his side, the of 91. 135. 6d. ; in payment of taxes and Clerks' Tickets maiter plead- to Stephen Wright, to the amount of 301. ; in payment of other side. a debt to Louisa Everett of 300l. due from the intestate See Lors v. Huse on a guardian's account ; in payment of taxes to Stephen fon, 34, Wright, to the amount of 15l. 6s. 60.; and to 1,273/. 38. v. 2d. rettined on a bond due from Willis Wilkinson to ThoTaliaferro, 1 Wash. 155., mas Everett, of whom Martha Nelson, wife of said William Dixon, 2 Nelson, is administratrix : and the said William Nelsor, Call, 379. and Martha, his wife, administratrix as aforesaid of WilA diversity in lis Wilkinson, have no goods or chattels, which belonged this respect, to the said Willis Wilkinson, at the time of his death, in between where their hands, to be administered; nor had, on the day of joined, and suing out of the writ aforesaid, nor ever after, except immaterialis . the goods and chattels so as aforesaid by them actually ine which, see administered ; and this they are ready to verify." To this plea the plaintiff replied, “ that, by any thing v. Muttor, 1 Cal! 257- alleged above by the said William Nelson, and Martha, 27.9. Webster v. Runister, his wife, his wife in pleading, he ought not to be barred Dongl. 395 , and Kirtleys from having his action against them : because, he says, Heck, 3 II. & M. 388. 391 The reason of this distinction seems to be, that, where no issnę is joined, both parties are equally in fault; because the party who pleads the affirmative matter, ought to rule the other party to reply; (and so on until issue be joind, or judgment be entered by default :) instead of having a jury empanneled to try an issue, when, in fact, there is none. But where an issue is actually joined, but that issue immaterial, the party who tendered it is most to blame, be cause his conduct had the tendency of misleading his adversary and the Court, by countemancing such a practice, might “ encourage tricks in pleading.” i Call, 261. and Kerr v. the for the a case is the case of an 1811. tor's V. Bennett. 111 that the bond set out in the plea, as having been exe- OCTOBER, administra. No rejoinder was filed by the defendant; but a jury was empanneled, who "being elected, tried, and sworn, the truth to speak upon the issue joined,” brought in a verdict in these words : “ We, of the jury, find for the plaintiff the debt in the declaration mentioned, and one penny damages. We also find there are assets in the hands of the defendants." Judgment was entered accordingly, for 11,462 dollars, From this judgment the defendants appealed to this Call , for the appellants, made two points : 1. That no issue was joined in the cause. 2. That the verdict was defective; not finding the amount of the assets.(a) (a) Booth v. Armstrong, 2 Wash. 301, George K. Taylor, contra. I admit there ought always to be enough in the verdict to settle the point in contro. versy : but this has been virtually and effectually done. 1811. October, The dispute does not appear to have been about the quanturit of assets; but whether the administratrix had Wilkinson's a right to retain to satisfy a bond which the plaintiff readministra plies was fraudulent. The authority in 2 Washo does not Bennett. touch the point. In this verdict, the jury; in finding assets,” must be understood as finding “ assets to the amount of 1,2791. 3s. 2d.” that being the only sum in controversy between the parties. The Court had the right to mould the verdict into proper form according to the right of the case ; a practice arising from the circumstance that verdicts were originally ore tenus. Call, in reply. The replication contains no negative to the plea, but introduces new matter altogether : the jury were sworn to try an issue, though none had ever been joined. Judge COALTER. Is not the neglecting to join issue a default of your client ? and can he take advantage of it? Call. There must be some issue joined ; either mata rial or immaterial. According to the case of Baird & Co. v. Mattox, 1 Call, 257., the defendant could not take advantage of an immaterial issue tendered by himself, But he may, if there be no issue. In the case of Booth v. Armstrong, the intendment that the assets were more than sufficient to satisfy the plaintiff's claim, was stronger than in this case; indeed, almost a necessary intendment: but the Court said it was not to be supplied by intendment.* The verdict here is not precise enough. If the Court had a right to mould it; they have not done so ; and, having had it recorded in its defective state, cannot now alter it: 'as this Court decided in Vaughan v. Freeland, 2 H. & M. 477. a * Note. Sce also the case of Rogers's administratrix v. Chandler's aš. mislistratrix, ante, p. 65. 1811. Friday, November 27th, Judge Roane pronounced the October, Court's opinion, that the judgment be reversed ; "it not appearing, in this case, that the affirmative matter, set out Beverley in the replication, was met by a negative on the part of Lawson's heirs, &c. the said William and Martha; and there being no issue joined thereupon in the cause." Verdict, and all proceeding subsequent to the replication, set aside, and the cause remanded for further proceedings. Beverley against Lawson's heirs, &c. Thursday, 1812 AN agreement, under seal, was entered into the 26th 1. Where a of August, 1801, between Gavin Lawson and Carter bill in equity រំ exhibited Beverley, “witnessing, that the said Lawson had on that by the vendor of land, do gainst the purchaser for specific performance; if the purchaser object to the title, and it appear doubtful whether the plaintiff can make such a title as would authorize a decree for specific performance, or other relief, on giving bond to guard against remote or improbable contingencies, the title ought, of course, to be referred to a commissioner, to be examined and reported upon. 2. If lands be sold according to certain metes and bounds; and, by a covenant under scal, the vendor agree to warrant the title against all persons whatsoever, he is bound to include, in a conveyance with general warranty, and in case of eviction, to make compensation for all the lands within those bounde, which he held and claimed as his own at the ime of the sale, and showed to the purchaser as part of the lands sold ; notwithstanding his tiile thereto may be defective. But he is not bound to convey lands which were pot held and claimed by him at the time of the sale, nor shown as part of the lands sold ; althouglı his title papers may comprehend them. 3. If land be sold on a credit, a day being appointed when the purchaser is to give bond and security for the money, and the vendor to convey the land ; and on the day appointed, the purchaser is ready with the bond and security, but the vendor not ready to convey ; on a bill afterwards brought by the rendor against the purchaser for specific performance, it is too rigorous to decree an absolute sale of the land, on a short notice, to raise the purehase money; but if it appear, on examiuation of the title, that the contract can, according to the principles of equity, be enforced on both sides, the decree should be, that the land be held bound for the purchase money, if bond and security for payment thereof be not given, with. in a reasonable time after the title shall have been made, and approved of by the judge, and after the plaintiff shall have performed such other acts as the Court may enjoin upon him ; and that, thereupon, the land be sold, after allowing such further reasonable time to redeem the same, by payment of the debt and interest, as is customary in the case of mortgages. 4. When a decree, in favour of the vendor, against the purchaser of lands, of sundry per. sonal property, is reverscdhand the cause remanded for a reference of the title, and a sur. rey to be made before cora missioners, the Court of Appeals will direct, that the appellant have liberty to show, and prove to them, if he can, what parts of the personal property stipulated for were not delivered under the contract, and the value thereof; although the Court would not have remanded the cause for that purpose alones |