
    Chewning v. Cox.
    In assumpsit there were two issues of fact, one upon the plea of non assump-sit, and the other upon the plea of payment; the jury found that the defendant did promise and assume, and assessed damages without any express finding as to the issue upon the plea of payment: Held, that the verdict was good.
    Where a finding upon the general issue for the plaintiff necessarily shows that the defendant failed in sustaining by proof the other issue, the omission by the jury to pass upon such other issue, is regarded as mere matter of form, and is not a ground for impeaching the verdict.
    ACTION of assumpsit by Bartley Cox, the defendant in error, against the defendant in the court below, commenced in the circuit court of Warren county. The defendantbelowpleaded nonassump-sit and payment, upon both of which pleas there was issue to the country; the issues were submitted to a jury, who found “that the defendant did promise and assume upon himself in manner and form as the plaintiff in his declaration hath alleged, and they assess the plaintiff’s damages to one hundred and eighty dollars.” The record showed no express finding as to the plea of payment.
    The counsel for the defendant below moved the court for a new trial, but the court overruled the motion and gave judgment for the plaintiff’s writ of error to this court, and now it is assigned:
    That the court erred in giving judgment upon the verdict of the jury, there being no finding as to one of the issues submitted to them.
    Guión and Prentiss, for plaintiffs in error.
    Magee and Coalter, contra.
    
   Mr. Chief Justice Shaiikey

delivered the opinion of the court.

This was an action of assumpsit instituted in the circuit court of Warren county. The defendant pleaded non assumpsit and payment and issue was taken. The jury found that the defendant did promise, and assumed, and assessed, not giving any verdict on the plea of payment.

The defendant below moved for a new trial, which was refused, and judgment entered on the verdict.

Strictly the jury should have found on both of the issues, and there may be many cases in which it would be essentially necessary for them to do so, but here it is manifestly a mistake in mere matter of form. The intention of the jury was evidently to give the plaintiff his damages, and verdicts should be construed liberally.

I find from the authorities that, when the finding on the general issues for the plaintiff necessarily shows that the defendant failed in .sustaining by proof the other issues, the omission is regarded as mere matter of form, and is not a ground for impeaching the verdict; 14 Johnson’s Reports, 84; 2 Barrow, 698. It is clear in this case that the defendant did not support his plea of payment, or the jury would not have assessed damages on the issue of non assumpsit. It is also a rule that the jury should find on all that is submitted to them, or the verdict will be defective, but I do not think there is any thing in the issue on the plea of payment, which is not substantially covered by the verdict. The indebtedness of Chewning at the time the suit was instituted was the only question submitted, and that the jury found that he was indebted, is also evident from the verdict.

The judgment must be affirmed.  