
    (common law.)
    Patterson v. the United States.
    A verdict is bad, if it varies from the issue in a substantial matter, or, if it find only a part of that which is in issue; and, though the court may give form to a general finding, so as to make it harmonize with the issue, yet, if it appears that the finding is different from the issue? Or-is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict. *
    In an action "of debt, upon a-bond to the United States, with condition that certain merchandise imported, and re-shipped for exportation, should not be re-landed within the U. S., and that the certificate and. other .proofs required by law, of tbe delivery of the same, without the limits of the U. S., should be produced at the collector’s of-fice within one year frorii the date of the bond; an issue was formed upon the defendant’s plea, that the merchandise was not re-landed, &c., and that the certificates and other proofs, required by law, of' the delivery of the same at Archangel, in Russia, were produced, &c. within"one year from the' date of the bond. The jury found a verdict, that, “ the within-mentioned writing.ohligatory is the deed of the-within-named R. -P., &c.,and they find there is really and' justly.due upon the said writing obligatory-the sum of 23,989 dollars-a'nd 58 cents.” Held that the verdict was so defective no judgment could be rendered upon it.
    
      A circuit court -has no authority to issue a certiorari, or other com- ' pUlsory process, to the district court, for the removal of a cause from that jurisdiction, before a final judgment or decree is pronounced.'
    In such a case, the district court may, and ought, to refuse obedience to the process of the circuit 'court, and .either party may moVe the circuit court, for a procedendo, after the. transcript of the record is removed into that court, or may pursue the cause in the district court, as if it had not been removed.
    But if the party, instead of properly taking advantage of the irregularity in the proceedings, enters his appearance in the circuit court, takes defence, and pleads to issue, it is too late, after verdict, to object to the irregularity, and the supreme court will, on error, consider the cause as an original suit in the .circuit court.
    Feb. 20th.
    March 13th.
    This cause was argued by. Mr. D. B. Ogden and Mr. Harper, for the plaintiff in error, and by the Attoney-General and Mr. Glenn, for the United States.
    Rut as the points made were not considered by the court, .and judgment was pronounced on other grounds, the argument is omitted.
   Mr. Justice Washington,

delivered the opinion of the court.

This was an action of debt instituted in the district courfof Maryland by the United. States against Robert Patterson, the plaintiff in error, upon a bond, dated the 2d . of August, 1809, in the penalty of 35,000 dollars, with condition that certain merchandise, which had been imported into the United States, and which the said, Patterson had then reshipped, in order to export the samejto Tonningen, should not be relanded in any port or place.within the United States, and that the certificate and other proofs required by law of the delivery of the same, at someplace without'the limits of the the United States, should be produced at the collector’s office of the port of Baltimore, within one year from the date of the bond.

After the declaration was filed in the district court, and the defendant had entered his appearance and tafeen defencé, a writ of certiorari, issued from the circuit to the district court, ih obediénce to which the record of the proceedings in that court was certified and §ent up to the circuit court. ,In,this, court the defendant again took defence, and after sundry imparlances, and having had oyer of the bond and condition, he pleads, 1st. "Performance generally of the condition. 2d. That the merchandise mentioned in the condition of the bond was not relanded in the United States, and that the certificate,: and other proofs required by law of the delivery of the same at Archangel, in Russia, were produced at the said collector’s office, within one year from the daté of the said bond.. 3d. That the said merchandise, or any part thereof,, was.not relanded in the United States, and that the certificates and other proofs required by law, of thfe delivery of the same at Archangel, in Russia, were produced to the said collector’s office, on the 11th day of November, in the year. 1811. The replication to ihe first plea alleges a breach-, of the condition of the bond, in not producing to the said collector’s office, the certificate add.other proofs required by law. of the relanding in some place without the limits of the United States, within one year from the date of the said bond, to which a rejoinder was put.in affirming, that the certificate and other proofs were produced at the said office within the said year, upon which an issue is tendered and joined. The same isáue is formed upon the second plea, and to the third plea a general demurrer was put in.

The demurrer was, upon argument, sustained, and judgment was entered against the defendant for the penalty of the bond.

A jury ¡was afterwards impannelled to try the issue who found the following verdict, viz. “ that the within-mentionef! writing obligatory is the deed of the within-named Robert Patterson, &c., and, they find there is really and justly due upon the said writing obligatory the sum of 23,989 dollars 58 cents.”

Upon this verdict the court gave judgment in favour of the United States, for 35,000 dollars, to be released on the payment of the above sum assessed by the jury, from which judgment a writ of error was obtained to remove the cáuse to tins court.

The'court considers it to be unnecessary to decide the questions which were árguéd at the bar, as the verdict is so defective that no judgment can be rendered upon it.

The issue, which the jury were sworn to try was, whether the certificate, and other proofs required by law, of the delivery of the cargo, at some place without the limits of the United States, were produced at the collector’s office at Baltimore, within one year from the date of the bond. . The verdict does not find the matter in issue one way or the other, but finds that the bond in the declaration mentioned is the deed of the defendant, and that there is justly due to the United States, upon the said bond, a certain sum. of money. But whether the bond was the deed of the defendant, or not, was not a matter in issue between the parties, and, consequently, it was a false conclusion to say, that, because it was his deed, therefore he. was indebted to the United States.

The rule of law is precise upon this point. A verdict is bad, if it varies from the issue in a substantial matter, or if it find only a part of that which is'in issue. The reason of the rule is obvious; it results from'the nature and the end of the pleading. Whether the jury find a.general or a special verdiGt, it is their duty to decide the very point in issue; and although the court in which the cause is tried may give form to a general finding, so as to make, it harmonize with the issue, yet, if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the vef'dict.

It is true, that if the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage;, but this rule does notapply to a case where the facts found in the verdict are substantially variant from those which are in issue.

The court deems it proper to take some nptice of the mode of proceeding, for removing this cause from the district to the circuit court. . It is believed to be novel iti the practice of the courts oí the United States; and it certainly wants the authority of law to sanction it. There is iio act of congress which, authorizes a circuit court to issue a compulsory, process to the district court, for the removal of a causo from that jurisdiction, before a final judgment or decree is pronounced. The district court, therefore, might, and ought to have, refused obedience to tne writ of certiorari issued in this case by the circuit court, and either party might have moved the circuit ipr a procedendo after the transcript of the record was removed into the circuit court,, or might have-pursued the cause in the district court, in like manner as if the record had not been femoved.

But if, instead of taking advantage of this irregularity at a proper time, and in a proper, mariner, the defendant enters his appearance to the suit in thé e-'.’cuit court, takes defence, and pleads to issue, it is too late, after verdict, to object to the irregularity in the proceedings. This court will consider the suit as an original one in. the circuit court, made ’ so by the. consent of. parties. Had a new declaration been filed in the circuit, court, no doubt could be entertained as to the correctness of this conclusion. And it is not going too- far to consider the declaration sent: from the district eourt- in the same lignt, after appearance, issue, and verdict. This is the opinion of ihe majority of the court.

The judgment is to be reversed, and a venire de novo to be issued, by the circuit court.

Judgment affirmed.  