
    Executors of Joel Middleton, dec’d, vs. Robt. Quigley.
    The general rule is, that the verdict must comprehend the whole issue or issues submitted to the jury in the particular cause, otherwise the judgment founded on it will be reversed.
    ' A 'construction whereby a verdict expressed in the terms of one issue is. extended to another issue is not admissible, unless it be the necessary conclusion upon the whole case.
    
      From the verdict of a jury in favor of the plaintiff, finding that there was -no rent in arrear, “the court cannot draw a conclusion in favor of the plaintiff on an issue of non tenuit, in regard to which the verdict is silent.” There is a substantial difference between the questions involved in the pleas “non tenuit” and "nothing in arrear,” so that finding the latter issue does not render the issue on the former so wholly immaterial that no notice need be taken of it.
    The omission of the jury to find a verdict on one of the issues joined, is not amendable in this court on a writ of error.
    This was a writ of error to the Common Pleas of the county of Burlington.
    The action below was replevin. The writ commanded the sheriff “ to cause to be replevied the goods, chattels and beasts (without specifying them), of the said Bobert Quigley, wdiich Joel Middleton took and unjustly detained, and to summon the said Joel to answer Bobert Quigley, of the said taking and unjust detention.” Under this writ the sheriff replevied and delivered to Bobert Quigley, certain goods, &c., duly appraised at thirty-seven dollars. The plaintiff' below declared for that on the first day of October, eighteen hundred and twenty-five, the defendant took the said goods, &c., (specifying them), of the value of three hundred dollars, at the township of Nottingham, to wit: at Mount Holly, in the county of Burlington, and within the jurisdiction of the said court, in a certain dwelling house *and upon certain premises there situated, and unjustly detained the same; wherefore he saith he is injured, and hath sustained damage to the value of tw;o hundred dollars.
    The defendant, Joel Middleton, avowed for a yearly rent •of the premises, at forty dollars, ending on the first of April, eighteen hundred and twenty-five, which thence, until, &c., and at the time when, &c., was in arrear and unpaid.
    The plaintiff pleads to this avowery, 1st, non tenuit. 2d, no rent in arrear. And issues were thereupon joined. The •cause was tried on the second Tuesday of August, eighteen hundred and twenty-seven, and the verdict of the jury is— “ that the said Joel Middleton did unjustly take and detain the several goods and chattels in the plaintiff’s declaration mentioned, and that there was not due and in arrear from the said Robert Quigley, unto the said Joel Middleton, on the first of April, eighteen hundred and twenty-five, the-said sum of forty dollars, or any part thereof; and they assess the damages of the said Robert Quigley, which he-hath sustained by reason of the premises in this declaration contained, at the sum of one hundred and twenty-five dollars and twenty-five cents 'over and above his costs and charges,, and for'those costs and charges at six cents.” After disposing of a rule to show cause, the court, on the twelfth November, eighteen hundred and twenty-seven, rendered judgment as follows : “ Thereupon it is considered that the-said Robert Quigley do recover against the said Joel Middleton, the damages aforesaid, in form aforesaid assessed,, and also, the sum of sixty-five dollars and thirteen cents, for his costs and charges of increase, by him, about his suit in this behalf expended, which damages and costs of increase,, amount, in the whole, to the sum of one hundred and ninety-seven dollars and thirteen cents, to the said Robert Quigley by the court now here, of his assent adjudged, and the said Joel Middleton, in mercy, &c.”
    
    The plaintiffs assign for error, among other reasons, that no verdict whatever was rendered o'n one of the issues, to-wit, non tenuit.
    
    
      Wall for plaintiffs in error.
    
      W. Halsted and Southard for defendant.
   The Chief Justice

delivered the opinion of the court.

This action of replevin was brought in the Court of Common *Pleas, of the county of Burlington, where the plaintiff declared for the taking and detention of sundry goods and chattels.

The defendant avowed the taking of the goods and chattels as a distress for the sum of $40 of rent for the space of one year, ending on the 1st day of April, 1825, duo and in arrear for a dwelling house and premises held and enjoyed by the plaintiff for the space of five years and five months, next before and ending on the said day, and from thence, until, &c., as tenant of the defendant under a demise thereof by the defendant to him at the yearly rent of forty dollars, payable yearly.

The plaintiff pleaded to the avowry, 1st that he did not hold or enjoy the said dwelling house and premises, as tenant to the defendant under the supposed demise in the avowry mentioned, manner and form as therein alleged ; and 2d, that no part of the said supposed rent was in arrear from him to the defendant, in manner and form as alleged in the avowry ; and on these pleas, respectively, issues to the country were joined.

The jury found, as appears by the record, that the defendant “did unjustly take and detain the several goods and chattels in the plaintiff’s declaration mentioned, and that there was not due and in arrear from the said Eobert Quigley, unto the said Joel Middleton, on the said first day of April, in the year 1825, the aforesaid sum of $40, or any part thereof,” and thereupon they assessed the damages of the plaintiff.

The judgment rendered on this verdict having been removed here by writ of error, one of the causes assigned for reversal is, that the jury have not found a verdict on one of the issues.

The defendant in error insists that the verdict is a substantial answer to both issues, and that if there was no rent in arrear, according to the verdict, it is wholly immaterial whether the plaintiff did or did not hold and enjoy the premises, as alleged in the avowry.

The general rule is that the verdict must comprehend the whole issue or issues submitted to the jury in the particular cause, otherwise the judgment founded on it may be reversed, 1 Arch. Pr. 190; Paterson v. The United States, 2 Wheat 225; Miller v. Tretts, 1 Ld. Raym. 324. In subservience to this rule, however, it has been held that though the verdict may not be expressed formally and punctually in the' words of the issue, yet if *the point in issue can be concluded-from the finding of the jury, the court will work the verdict into form and make it serve. Hanks v. Crofton, 2 Burrow, 698; Thompson v. Button, 14 John. 84. Tilghman, C. J., in Kerr v. Hartshorne, 4 Yeates, 293, limits the authority of the court to cases where the jury have expressed their meaning in an informal manner, and says, the court have no power to supply substantial omissions.

.The principal question, then, in considering the validity of the objection against the judgment, is whether the issue on the plea of non tenuit can be concluded from the finding of the jury ; and whether the finding on the second issue does render the first issue so wholly immaterial, that no notice needs be.taken of it.

The verdict, it must be admitted, is not a direct and explicit answer to both issues.' The fact that the rent was not in arrear, as alleged, does not show the truth of the plaintiff’s first plea, that he did not hold and enjoy the premises as stated in the avowry ; for he may have so held them for the very time mentioned, and yet, by payment or otherwise, no rent may have been due, either at the day it is said to have accrued, or at the time of the distress. The opinion of the jury on the first issue, cannot be learned from their verdict on the second. They may have believed the ■tenancy, but disbelieved the arrearage of rent. The point in issue on the first plea cannot then be concluded from the finding of the jury. In Porter v. Rummery, 10 Mass. Rep. 72, the court said that a construction, whereby a verdict expressed in the terms of one issue is extended to another issue, is not admissible, unless it appears to be the necessary-conclusion upon t-he whole record.

In Brown, Exr. v. Henderson, 4 Mumf. 492, an action of debt was brought on a bond of the testator; the pleas were payment by the testator, and fully administered; on which issues were joined. The jury found a verdict “for the defendant, he having administered all the assets.” Judgment was rendered for the defendant; which was reversed in the District Court, because not responsive to both the issues; and the reversal was afterwards affirmed in the Supremo Court of Appeals.

Nor can the court mould the verdict into form. In doing so, how should.the court direct the verdict to be drawn up? For the plaintiff or for the defendant? That the plaintiff did or did *not hold and enjoy the premises as alleged? If, indeed, the jury had, in general terms, in the manner suggested by the counsel of the defendant in error, found for the plaintiff upon the issnes, or found the several issues for the plaintiff, the court below would have put the verdict into due form according to the issues. Such a verdict is usual and quite sufficient, and the very words of the issues need not be repeated by the jury. But we have no evidence that the jury did so find; on the contrary, the state of the record renders the presumption strong that they ■did not, or we may suppose both issues would have been formally answered.

There is a substantial difference between the questions involved in these two pleas, non tenuit, and nothing in arrear; between the nature of the subjects of inquiry presented by them respectively. Hon tenuit puts in issue the demise and tenancy as stated in the avowry or cognizance, and requires the defendant to prove them; 2 Saund. Pl. & Ev. 330. The plea of nothing in arrear admits 'the tenancy as stated in the avowry or cognizance, and puts in issue the fact of the rent being in arrear. Some slight evidence of the arrears must be gone into by the defendant, but the great burden of proving the rent, not in arrear, lies on the plaintiff; Ibid 331; Alexander v. Harris, 4 Cranch. 299. Iff then, the plaintiff, not contenting himself with a plea which admits the tenancy, will interpose one which denies it, and which compels the defendant, at the risk of the cause, to produce proof of it, the consequences of a false plea ought justly to be visited upon him.

But it is argued that a'verdict on the first issue may be given or - supposed for the defendant, that the plaintiff did hold the premises as alleged, and yet the verdict on the second issue being for the plaintiff, he is entitled to judgment, and therefore the omission, which is observed in this record, must be immaterial. Is this position 'and the inference from it sound ? The contrary was held in Cook v. Green, 5 Taunton 594. In replevin, issues were taken on three pleas : 1st, non tenuit; 2d, nothing in arrear, and 3d, that the goods were not fraudulently removed. The court said, “ If the defendant disproved either of the three, he had a good cause of distress; there was no reason of prudence, or caution, which called on the plaintiff to aver'those *issues which he knew to be false ; no reason why he should not content himself with what he knew to be true.”

For these reasons I am of opinion 'the verdict is radically defective, and the judgment is liable to be reversed.

On the part of the defendant in error, it was insisted that if there is error in the matter assigned, it is amendable, and Petrie v. Hannay, 3 D. & E. 659, was cited. But if amendable, it cannot be done in this court. The amendment suggested is not one within the statute of jeofails or which an appellate court will actually make, or consider as amended and overlook, and moreover inasmuch as there is nothing, as already remarked, from which we can learn the opinion of the jury on the omitted issue, there is nothing whereby an amendment may be made. In Petrie v. Hannay, the amendment was made in the King’s Bench, where the judgment was rendered. So in Richardson v. Mellish, Error from C. B. to K. B., 3 Bingham, 334.

In my opinion, the judgment of the Court of Common Pleas should be reversed.

Judgment reversed.  