
    Welcome Martin and others v. The Clinton Bank of Columbus.
    In an action of assumpsit, where the verdict in favor of the plaintiff substantially negatives the special pleas, the court will not reverse the judgment based upon such verdict, though it does not, in terms, find that the allegations in the special pleas are untrue.
    This is a writ of error to the Supreme Court of Delaware county.
    The declaration contains two special counts on a bill of exchange, made by the plaintiffs in error to the defendants, bearing
    *date on October 25, 1836, drawn upon R. J. Wharton, of the city of New York, and payable to the order of J. Delafield, Jr., cashier of the Phoenix Bank, for $1,300, sixty days after the date thereof. The common counts are for money lent and advanced, and for money had and received to the use of the defendant in error, and on an account stated. To this declaration the plaintiffs in error plfead, first, non assumpsit; secondly, a special plea in bar, that the said Welcome Martin, on October 24, 1836, being in want of money, made application to the defendant in error for a loan of $1,300, upon a note proposed to be executed by Martin and the other plaintiffs in error, which, application afterward, on the same day, was taken into consideration and allowed by the defendant in error; and an agreement made with said Martin, to loan him the said sum of $1,300 for sixty days, on tho note of the said plaintiffs in error; and therefore the said Welcome Martin delivered to the said defendant in error .a note executed by the plaintiffs in error in blank, except as to the amount and time it was to run, to be filled up by the defenuant in error as a promissory note; and the defendant in error received and discounted it as such, and paid to the said Welcome Martin thereon the sum of $1,286.35, being the amount of said note, less the lawful interest thereon ; and that afterward the defendant in error, unlawfully and fraudulently, and without the knowledge or consent of the said plaintiffs in error, or either of them, filled up the said blank note as a bill of exchange, which is the same declared on, and none other, etc. And the plaintiffs in error aver that the filling up of the <said blank note as a bill of exchange, in the manner aforesaid, was and is in violation of the laws of the land, and that the said bill in the hands of the defendant in error is fraudulent, and void in law.
    In the third plea, the plaintiffs in error aver they made application for the loan as stated in the second, which the defendant in error refused Upon lawful interest; but then and there unlawfully, ^corruptly, and usuriously agreed with said Welcome Martin, that the defendant in error would loan the said sum upon a bill of exchange drawn by the plaintiffs in error, payable at the city of New York, upon the condition that the defendant in error should receive a greater interest thereon than at the rate of six per cent, per annum on the amount to be loaned, to wit, six per cent, per annum, and one per cent, in addition thereto, under the name of difference of exchange between Columbus and the city of New York; and that the said Welcome Martin should pay the said bill of exchange and the interest at the rate of six per cent., and also one per cent in addition thereto thereon, as aforesaid, at the banking-house of the defendant in error, in the city of Columbus; and that, in pursuance of the said unlawful, corrupt, and usurious agreement of the plaintiffs in -error, did deliver to the defendant in error the bill of exchange in the declaration mentioned to be discounted, which was, etc., received and discounted at the rate of six per cent, per annum, and with the agreement that the plaintiffs in error should pay to the defendant in error, at her banking-house in the city of Columbus, the amount of the said bill of exchange at its maturity, and one per cent, thereon in addition thereto, as- aforesaid, etc. And the plaintiffs in error aver that the said bill of exchange is therefore void in the hands of the defendant in error, etc.
    The defendant in error, by her replication, took issue on the facts set up in the special pleas.
    
      The causo was submitted to a jury in the Supreme Court for the county of Delaware, at the June term, 1844, and a verdict rendered that the plaintiffs in error did assume and promise, and they assess the damages of the defendant in error, by reason of the premises, at $1,903.41, and on this finding of the jury, judgment was rendered by the court.
    The errors assigned are, that the issues taken to the matters set up in the special pleas, were not passed on by the jury, but loft undisposed of.
    *T. W. Powell, for plaintiffs in error:
    The finding of the jury is, that the defendants did undertake and promise, etc., and does not take notice of the special pleas. That this is error is clearly shown by the following authorities: Hanley et al v. Levin, 5 Ohio, 227; Powell v. Harter, 5 Ohio, 259; Hewson v. Saffin et al., 7. Ohio, 234, pt. 2; Clark et al. v. Irwin, 9 Ohio, 131.
    If it bo said that the court might have applied the finding of the jury to the other issues, and entered up verdict upon all the issues, and amended it accordingly, we answer it can only be done in those cases where the verdict is an answer, to some extent, to the other issues; not where it remains doubtful what the jury intended. But this can only be done by the court below. The court, in Clark et al. v. Irwin, 9 Ohio, 132, say, that “there is a peculiar fitness in that power being exercised only by the court who tried the cause. No other tribunal can know the facts which will authorize the amendment.”
    But, in this case, were it before the court below, that court could not, from the verdict, make it answer the issue on the third plea. For, although the verdict may be a substantial finding on the first special or second plea, yet it can not be so on the last plea. The jury finding that the defendants did undertake and promise, in manner and form, etc., does not answer the last plea, by finding whether there was or was not a corrupt and usurious agreement that the bill (which was made payable at New York) should, notwithstanding, bo paid at the bank at Columbus, with six per cent, interest, and also the one per cent, additional, by way of difference of exchange. Now this usurious agreement might be true, notwithstanding the verdict, that the defendant did undertake and promise, etc. This usurious agreement to make a bill of exchange instead.of a promissory note, and thereby cover up usury under the cover or denomination of difference of exchange, is a subject matter which we had a right to make the subject of a special *ploa, and the issue having been joined thereon, tho jury must respond to it; and it is not answered by tho finding on the general issue.
    It is now too late to raise the objection, that the plea amounts to the general issue, if in truth it were so. Usury is a good special plea; though that matter might be given in evidence under the general issue, yet the bank having taken issue upon the plea, which issue tho jury were sworn to try, and which may bo true, notwithstanding the finding of the jury, there can bo no question that there is error, in not finding on this special plea.
    Perry and Dennison, for defendant in error :
    The two special pleas are, in substance, pleas of the general issue ; and, therefore, tho finding of the jury is substantially correct.
    The general issue does not mean simply, “ that the defendant did not actually promise, as stated in the declaration ; but that he is, at the time of pleading, not indebted to tho plaintiff, or not in law liable to tho demand made in the declaration.” Gould’s PI. 331; 1 Chitty’s Pl. 556, 557; Gould’s PI. 345 ; 19 Johns. 300 ; 8 Cranch, 30 ; 13 Wend. 78 ; 5 Cow. 466 ; 2 Hall, 195 ; 1 Chitty’s Pl. 511, 512; 2 Starkie’s Ev. 77-79; 1 Selw. N. P. 122; 2 Phillips’ Ev. 130; 11 Ohio, 489; 12 Ohio, 112. The verdict is, of course, as broad as the issue. It not only asserts that the defendant did “actually promise,” which is really the only fact in issue here; but it also finds that, at the time of the pleading, the defendants were “ indebted and liable in law to the demand made in the declaration.” It means this, in substance, and it includes a finding on tho merits of the special pleas. Taken liberally or strictly, it amounts to the same thing.
    The declaration charges that defendants did assume and ^promise, and that the manner and form of the promise was by bill of exchange. The defendants, in their first special plea, admit that they did assume and promise, but aver that the manner and form was not by bill, but by a promissory note. The issuo is made on tho “ manner and form.” It is true, as before shown, that the same issue precisely would have been presented, by a plea of non assumpsit. But the only question presented is, as to the manner and form of tho promise. The jury find that defendants did assume and" promise, 11 in manner and, form, as the plaintiff hath 
      
      complained, against them.” That is to say, that they did promise by bill of exchange, as asserted by plaintiffs. Language could not form a more explicit negative to the plea, than is given in the verdict.
    The same in regard to the other special plea. As before shown, the plea is wholly insufficient, and the issue immaterial. But granting, for argument, that the plea, if true, is sufficient, it puts in issue the assumpsit, and the verdict finds that defendants “ did assume,” etc., which is a full response to the issue.
    The rule laid down in 2 Burrows, 698, is, “ that when the intention of the jury is manifest and beyond doubt, the court will set right matters of form, and the mere act of the clerk.” That action was trespass vi et armis. Pleas : 1. Not guilty ; 2. Son assault demesne; on which issues were joined. The verdict was, “ Guilty of the trespass within written.” The objection was, that it did not notice the issue formed on the plea of son assault demesne. Lord Mansfield said: “ I think that the present is such a clear case, that the court may here give judgment upon the substantial finding, though the clerk may have been irregular and faulty in point of form. It is very clear what the jury meant.” Mr. Justice Wilmot quoted and affirmed the rule laid down in Hob. 54: “ That if a verdict can be, concluded, out of the finding of the point in issue, the court should work and mold it into form, according to the real justice of the case.” Judgment was unanimously affirmed.
    *Hadges v. Raymond, 9 Mass. 316. This action was “trespass quare clausum fregit.” Pleas: 1. Not guilty, as to the force and arms; 2. As to the rest of the trespass, justification; on which issues were joined. The jury returned a general verdict for defendants of “ not guilty.” The court refers to the case in Burrows, and adopts the language; and, .applying it to the case before them, said: “The jury could not have found thus, if defendants had failed in proving their justification.”
    Porter v. Rummery, 10 Mass. 63, was a real action, to which defendant pleaded two pleas: 1. As to part of the land, not guilty. 2. As to the residue, non tenure, disclaiming all right and title, and denying that he was in possession. The jury returned a verdict of not guilty, and'judgment was entered. On error, this was held sufficient. The court fully considered the objection, and said: “Thisverdict seems capable of a construction in which it may be understood as comprehending both issues, and sufficiently to warrant the judgment entered upon if for the tenant.” “The court'are competent to collect the meaning of the jury from the terms of their verdict; and one verdict maybe a sufficient finding upon several issues. The general rule is, that, although the verdict may not conclude formally or punctually, in the words of the issue; yet, if the point in issue can be concluded cut of the finding, the court sh^ll work the verdict into form, and make it serve according to the justice of the case.”
    Law v. Merrils, 6 Wend. 268, was an action of assumpsit, to which defendant pleaded two pleas, on which issues were joined : 1. Non assumpsit; 2. Payment. The jury found a general verdict, like the one in this case, on the issue of non assumpsit; but did not notice the pica of payment. On error, the authorities wore reviewed, and the verdict was held sufficient. The court say: “It would have been impossible to obtain a verdict in favor of the plaintiff, on the general issue, if the defendant had established, his plea of payment.” “On the last plea, the dciendant held the affirmative, and payment can be given in evidence, under the general issue, as well as under the special *ploa. Whatever would have entitled the defendant to a verdict under the latter, must have entitled him to a verdict under the former. This, therefore, though not in form, is, in substance, a verdict for the plaintiff on both issues; and the defective finding of the jury afforded no sufficient ground for reversing the judgment,” etc.
    The same point is decided the same way, in a case similar. Hannah v. Mills and Hooker, 21 Wend. 90.
    The reason of the'so two latter cases is exactly applicable to the case at bar. The same defense that was pleaded specially, might have been proved under the general issue; and, in the present case, could, properly, bo pleaded no other way.
    Garland v. Bugg, 1 Hen. & Mun. 374. This was an action of detinue, for detaining a slave. Pleas: 1. Non detinet; 2. A special agreement by which ho was entitled to the slave. There was a general replication, denying the truth of both pleas, and issues joined. The jury found a general verdict for the plaintiff,without noticing the issue made on the special plea. Judgment affirmed. See also.Thompson v. Musson, 1 Dall. 458.
    This case is within the rule of the above cases, and the reasons for affirming the judgment much stronger than in any one of the cases cited. All the reasons which influenced the decisions referred to, apply here, with the additional reasons that the special pleas are bad as amounting to tho general issue; that the issue joined on one of them is wholly immaterial, and the issues are both immaterial, as to the common counts of the declaration.
    The cases heretofore decided, in this state, were under a different state of pleadings.
    Powell v. Harter, 5 Ohio, was assumpsit. Pleas: 1. Won assumpsit ; 2. Statute of limitations. The jury did not find as to the statute of limitations. Headly v. Roby, 6 Ohio, 521, was debt on judgment. The only pica was a plea of piayment, with notice of set-off. The verdict did not pass on the plea at all. This caso turned protty much on the merits *of “prairie pleading.” Hewson v. Saffin and Smith, 7 Ohio, 232, pt. 2, was replevin. Plea: 1. Won detinet; 2. That, at tho timo, etc., the goods were the property of the- defendants; 3. That they were tho property of James Saffin, one of the defendants; 4. That they were tho property of Smith, the other defendant; 5. That they were the property of Samuel _D. Elagg. The verdict was, “We, tho jury, find for tho defendants, and assess the damages,” etc. Tho court said, that this verdict found 11 all the issues” for defendants. It finds the property to be in both of the defendants ; in each, and in a stranger. Such a state of things can not exist in law or ethics. Clark et al. v. Irwin, 9 Ohio, 131, was assault and battery. One defendant pleaded not guilty. The other two pleaded, separately, son assault demesne. Tho jury returned a general verdict of guilty, as to all the defendants. Two of tho defendants did not deny the act charged, but justified. The jury paid no attention, apparently, to their case, but returned a verdict applicable only to the one who had pleaded not guilty. All these cases are clearly distinguishable from tho case at bar. In none of these could the verdict be said to comprehend all tho issues. Nor did the findings cover the whole merits of the case. Hanley et al. v. Levin, 5 Ohio, 227, was assault and battery against three persons. They all pleaded : 1. Not guilty, and each pleaded separately, special picas. One son assault demesne. The other two, that they did it to preserve tho peace and prevent a fight only. The verdict was a .general verdict of guilty against them all. This is also eloarly distinguishable from the present case. The court held that they had no power to amend the verdict, and that “per so amended,” it was no answer to any other plea than the general ono. But they went on to say, “ Had it been not guilty, by negativing the assault, it would have been a sufficient answer to justification, for no fact would have been left to justify.” Although the verdict was held bad, the principle of the decision is in our favor. It establishes two propositions, which are conclusive of the case at bar.
    *1. That a verdict need not, in all cases, specifically refer to, and answer in terms all the issues tried.
    2. That the cases where it need not do so, are where the finding of ono issue necessarily finds all the rest, and is a complete answer to all the rest,1 so that no further fact is left to be tried.
    Apply these propositions to the verdict in this case. It is “per se unamended, a sufficient answer” to the pleas, for no fact has been left to try. And the rule applicable to such cases is uniform and undoubted.
    The only difference discoverable, in the decisions on this subject, is as to the state of pleadings to which the principle shall apply. They all unite in asserting the principle, in the most emphatic and clear terms, and the difference of opinion in regard to the circumstances calling for its application may originate, as suggested by the court, in Hanley et al. v. Levin, in their different modes of practice. But although our court has considered its practice to require more strictness in applying the principle, they have never expressed a doubt as to the correctness of the principle itself. Thus, in 3 Ohio, 384; 5 Ohio Cond., 142, our court said: “It sometimes happens that the finding of one issue concludes the whole, although some are unanswered.” And in Sutliff v. Gilbert, 8 Ohio, 405, the court regard it as sufficient, “ when the jury return a general verdict settling the rights of the partiesand they remark, “ It is rarely the case, in our practice, that the jury return a formal and technical verdict.” So in 5 Ohio, 227, before cited, if the verdict “perse unamended, is a sufficient answer,” etc., it will bo good.
    In England, Massachusetts, Now York, Pennsylvania, and Virginia, formal errors in the verdict are amended by the court, or tried as if amended by the court, on the trial of a writ of error. But as the decisions now stand in Ohio, the court in bank will not amend a verdict found to be informal on the rooord. But this informality, to vitiate the judgment, must amount to a substantial defect in the ^record. It must fail to show on which side judgment should be given. Eor if it be “per se unamonded, a sufficient answer to the issueif it be “ a general verdict, settling the rights of tho parties;” if it “ happen that tho finding of one issue concludes the whole, although some are unanswered,” yet the judgment must stand.
    Ferrel v. Humphrey, 12 Ohio, 112, is decided on the same principle which wo claim to have applied in this case. It was an action of replevin. Pleas: 1. Non detinet; 2. Property in defendant. Parties went to trial without any replication to the second plea. Verdict for plaintiff, and judgment. The court had decided, in 5 Ohio, 276, and 6 Ohio, 524, that when a plea constituting a bar to the action, and requiring a replication, is loft unanswered, it is error to dispose of tho case while the plea remains on record, without a replication. But still, the verdict and judgment in 12 Ohio, 112, was hold good on error. The reason was, because an issue on tho plea, even if the plea were good, “ could afford the defendant no advantage that he had not under the general issue." No reason is perceived why the same rule would not have applied in the case at bar. If it had been tried without any replication to tho special pleas, our judgment would be good. Can the filing of a replication to such pleas, change the principle? Doubtless the same reason would hold true after replication; and it is for that very reason that no.replication is necessary. With or without a replication, the defendant would, have “ no advantage that he had not under the general issue."
    
   Wood, C. J.

The law is clear that tho verdict must respond to all the issues made up between the parties. There are several adjudications in our own court to this effect; and on questions of this kind, no higher authority is admitted. 5 Ohio, 227, 259; 7 Ohio, 234; 9 Ohio, 131.

But cases may occur, says Lane, Judge, in 5 Ohio, Hanley v. Levin, where a verdict upon the general issue alone, *will be a substantial response to the issues taken on the special pleas, and as they are in substance negatived by such finding, the form of the verdict, after judgment,'can be of no importance to the validity of the record.

Is not this the precise ease at bar ¶ The first special plea avers the fraudulent change of a promissory note discounted in blank, to a bill of exchange, payable in New York. Such alteration by the payee, renders the instrument void. There is no promise to pay it; 'but the finding of the jury on the general issue alone, for the plaintiff below, negatives this special issue. Without finding the evidence insufficient to support it, and that it was unsustained by the proof, they could not have found the assumption and promise of the plaintiffs in error.

The second special plea is in the like condition. The issue there is upon a corrupt agreement to discount the bill of exchange at a higher rate of interest than six per cent.; that the bill was discounted on such agreement, and more than six per cent, reserved and agreed to be paid at the maturity of the bill, under the shift, name, and device of exchange. If such, again, was the effect of the proof, under this issue, the bill of exchange'was void. The Clinton Bank can discount at six per cent, per annum, interest only; and when interest is covered up under the shift of calling it exchange, if it be, nevertheless, interest, it by no means aids the bank by the extension of its power.

The issue, in substance, therefore, is upon the fact whether the bill of exchange was not absolutely void by the excess of power exercised by the bank in its discount. If the fact was proved, the consequence followed, that the bill was as blank paper. There was no legal assumption and promise, but the jury have found both, and thereby negatived the facts in substance, set up in this plea, on which issue was joined. The judgment is affirmed.  