
    *Wilkinson’s Administrators v. Bennett.
    Tuesday, Nov. 24th, 1812.
    Pleading and Practice — No Issue Jotaad — Effect.—If a jury be empaneled ‘.‘to try the Issue joined," when, in reality, no issue is joined, the judgment must he reversed, and the verdict set aside, notwithstanding it was against the party who failed to meet, by a negative on his side, the affirmative matter pleaded on the other side.
    See Taylors v. Huston, 2 H. & M. 161-164; Stevens v. Taliaferro, 1 Wash. 155, and Kerr v. Dixon, 2 Call, 3?9.
    
    In debt on a bond, in behalf of Thomas Bennett against William Nelson, and Martha, his wife, late Martha Wilkinson, administratrix of Willis Wilkinson, deceased, the defendants pleaded, “that all and singular the goods and chattels of the said Willis Wilkinson, which have come to their hands to be administered, have been by them duly and actually administered, to the amount of 1,7241. 5s., in the following manner, to wit: in discharge of a judgment in favour of Matthew Maben, of 901. Is. lOd. ; in payment of taxes to Zachariah M’Clenny, to the amount of 91. 13s. 6d. ; in payment of taxes and Clerks’ Tickets to Stephen Wright, to the amount of 301. ; in payment of a debt to Eouisa Everett of 3001. due from the intestate on a guardian’s account; in payment of taxes to Stephen Wright, to the amount of 151. 6s. 6d.; and to 1,2791. 3s. 2d. retained on a bond due from Willis Wilkinson to Thomas Everett, of whom Martha Nelson, wife of said William Nelson, is administratrix: and the said William Nelson, and Martha, his wife, administratrix as aforesaid of Willis Wilkinson, have no goods or chattels, which belonged to the said Willis Wilkinson, at the time of his death, in their hands, to be administered; nor had, on the day of suing out of the writ aforesaid, nor ever after, except the goods and chattels so as aforesaid by them actually administered; and this they are ready to verify.”
    To this plea the plaintiff replied, “that, by any thing alleged above by the said William Nelson, and Martha, his wife, his wife in pleading, he ought not to be barred from having his action against them: because, he says, ’That the bond set out in the plea, as having been executed by the defendants’ intestate to Thomas Everett, and of which the defendants claim, by right of retainer, the sum of 1,2791. 3s. 2d., was not a fair and bona fide bond for legal consideration, but was without consideration, and fraudulent; and this he is ready to verify: wherefore he prays judgment, and that his said debt, together with his damages, by reason of detaining the same, may be adjudged to him,” &c.
    No rejoinder was filed by the defendant; but a jury was empaneled, 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 rented accordingly, for 11,462 dollars, the debt aforesaid, &c. to be discharged by the payment of 5,731 dollars, with interest from the 3d of August, 1802, &c. “And the plaintiff may have execution on the judgment aforesaid, for the sum of 1,2791. 3s. 2d., the sum retained in the hands of the defendants to discharge the bond said to be due a certain Thomas Everett, and for the payment of which the said sum was retained by the defendants: and further, execution may issue, when assets shall come to the hands of the defendants to be administered, for the balance of the debt and costs.”
    From this judgment -the defendants appealed to this Court.
    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, 
    
    George K. Taylor, contra.
    I admit there ought always to be enough in the verdict to settle the point in controversy: but this has been virtually and effectually done. *The dispute does not appear to have -been about the quantum of assets; but whether the administratrix had a right to retain to satisfy a bond which the plaintiff replies was fraudulent. The authority in 2 Wash, does not 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 COAETER. 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 material 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 in-tendment.'*' 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.
    
      
      Pleading and Practice — No Issue Joined — Effect.—In State v. Douglass, 20 W. Va. 777, it is said: “Itis well settled that if a verdict has been rendered without any issue being joined, it is a mere nullity, and no j udgment can properly be rendered upon it, whether it be a civil or a criminal action. See Stearns v. Taliaferro, 1 Wash. 155; Grymes v. Pendleton, 4 Call 130; Taylors v. Huston, 2 Hen. & M. 161: Keer v. Dixon, 2 Call 319; Wilkinson. v. Bennett, 3 Munf. 316: Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422: Rowans v. Givens, 10 Gratt. 250: Baltimore & Ohio Railroad Company v. Gettle, 3 W. Va. 376; Baltimore & Ohio Railroad Company v. Faulkner. 4 W. Va. 180: Gallatin v. Haywood, 4 W. Va. 1: Baltimore & Ohio Railroad Company v. Christie, 5 W. Va. 325; State v. Conkle, alias Swank, 16 W. Va. 736." To the sime effect, the principal case is cited in Reyner v. Hill, 21 W. Va. 159; Brown v. Cunningham, 23 W. Va. 111; Hickman v. B. & O. R. Co., 30 W. Va. 315, 7 S. E. Rep. 660. See further, on this subject, foot-note to Stevens v. Taliaferro, 1 Wash. 155, containing a quotation from Henry v. Ohio R. R. Co., 40 W. Va. 234, 21 S. E. Rep. 865. in which the principal case is cited; foot-note to Southside R. R. Co. v. Daniel. 20 Gratt. 344, containing an extract from Simmons v. Trumbo, 9 W. Va. 363, in which the principal case is referred to; foot-note to Rowans v. Givens, 10 Gratt. 250: monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425. The principal case is also cited in discussing this point on Southside R. R. Co. v. Daniel, 20 Gratt. 360.
    
    
      
       Note. A diversity in this respect, between a case where no issue is joined, and the case of an immaterial issue; concerning which, see Baird & Co. v. Mattox, 1 Call, 257-279, Webster v. Banister, Dougl. 395, and Kirtley v. Deck, 8 H. & M. 388, 394. The reason of this distinction seems to be, that, where no issue is joined, hots, parties are equally in fault; because tlie party who pleads the affirmative matter, ought to rule the other party to reply; (and so on until issue be joined, or judgment be entered by default;) instead of having a jury empaneled 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, because his conduct had the tendency of misleading- his adversary and the Court, by coun-tenancin4Tsuch a practice, might “encourage tricks in pleading.” 1 Call, 261. — Note in Original Edition.
    
    
      
       Booth v. Armstrong, 2 wash. 301.
    
   Friday, November 27th,

JUDGE ROANE

pronounced the Court’s opinion, that the judgment be reversed; “it not appearing, in this case, that the affirmative matter, set out in the replication, was met by a negative on the part of 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. 
      
      Note. See also the case of Rogers’s administratrix v. Chandler’s administratrix, ante, p. 65.
     