
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Lesesne v. Grant.
    If the jury find a gross sum for principal and interest, when the plaintiff is not intitled to interest, and it cannot be collected from the verdict what part of the sum was found for interest, the verdict will be set aside, and a new trial ordered, although the plaintiff offer to release the interest.
    Motion for a new trial. This was an action of assumpsit, tried before Bay, J. in April, 1803, in Georgetown district. The declaration charged the defendant for meat, drink, &c. found for his wile. The jury found a verdict in these words: “ We find for the plaintiff the amount of Or. Grant’s assumption, made through Mrs. Anna De Bruhl, of £35, per annum, with interest on the same each year to the 1st of April, 1803, amounting to 1986 dollars, 85 cents.” Besides the count for meat, drink, -&C. at a certain price, the declaration contained another upou a quantum. meruit, for the same consideration ; and another for money had and received. The defendant gave evidence of his wife’s criminal connection with a Mr. Sykes, which was fully proved; and of his separation from his wife, and of their living apart at the time, and prior to the time, during which the plaintiff charged for her support. Upon their separation the wife went to live with the plaintiff, who is her father, and has lived with him ever since. Mrs. De Bruhl, by whose testimony the infidelity of the defendant’s wife was provetb gave further evidence, that shortly after Mrs. Grant had removed and lived separate from her husband, in 1798, and was liv'ing with her father, she had a conversation with the defendant, who desired her to acquaint the parents of Mrs. G., that he would allow them £35, per annum, for her maintenance, which he would pay quarterly. That sho,- the witness, communicated this proposal of the defendant to the mother of Mrs. G., who asked whether the separation was to be for months or years : to which the witness answered, that she hoped it would be for a short time only. That the witness some time afterwards saw the defendant, and told him that she had mentioned to Mrs. Grant’s parents what he desired her to mention. The witness could not tell whether the plaintiff had ever been acquainted with the defendant’s proposal. The account filed with the declaration, charged the defendant for seven years board of Mrs. G.', at £50 per annum, from the 25th July, 1793, to the 35th July, 1800. The jury found as above, contrary to the opinion of Bay, J., who charged them that the defendant was not liable for necessaries for his wife, without an express promise ; and that the evidence did not prove a promise, but a proposal only.
    For the defendant, it was argued, that in a case of this sort, where the husband is charged for necessary meat, drink, &c. fur. mshed his wife, if he can prove that the wife, in consequence of her misconduct and infidelity towards him, was separated from him, and was living apart from him, with one who was well acquainted with the cause of separation, he will not be liable to pay such charge, to the person who may, entertain and support her under such circumstances. See 6 Mod. 147, 171, 163. 1 Salk. 119. 2 Vern. 386,493, 671,752. 1 Ld. Raym. 444,1006. Str. 127, 647, 706, 875, 1122, 1214. Bl. Rep. 197, 1195.
    That in this case it was not proved that the defendant undertook to pay the plaintiff any thing for the board of his wife ; for that it did not appear, that the proposal, made by him for that purpose, was ever made known to the plaintiff, and acceded to by him, without which there could be no contract. Pow. on Con. 6.
    That even if the proposal had been accepted, it would not con. stitute a good agreement, for want of consideration. 1 Esp. Dig. 86. That the plaintiff had voluntarily undertaken to receive and support the defendant’s wife, without any expectation of reward, and was not therefore entitled to any. It was voluntary courtesy. 2 T. R. 80.
    That the verdict was founded on the evidence of a special agree»,. inent to pi.y so much per annum,; but the evidence did not prove any such agreement: a> d moreover, interest was found, which is not warranted by any evidence given. Besides, that the plaintiff had not declared on any such contract as the jury had found by their verdict, and therefore the verdict was not good. 1 Lofft's Gilb. 165. 1 Esp. D.g. 133, 166, 139. Bull. N. P. 139. 1 Str. 648.
    The jury had confounded the evidence. The evidence of the overtures made by the defendant were improperly given, as there was no count in the declaration to which it could apply, even if the overtures had been acceded to : but not having been acceded to, the jury should have taken no notice of them. Pow. on Con. 330, 331. The verdict is imperfect, and incapable of being mould, ed into any form so as to serve.
    Oil the other side it was contended, that the proposal of the defendant was founded on a good consideration ; wad there was presumptive evidence, of its h; vi.-g.been commu.-mated to the plaintiff, and of his having acceded thereto. That the verdict is suffii. cient, being warranted by the evidence adduced. It finds a sum certain; and whatever may be added thereto, which is not pertinent, may be rejected as surplusage. Utile per inutile, non vitiatur. 7 Bac. Abr. 21, 22, 42. Although no count in the declaration of a special contract, yet after verdict it shall he presumed that the evidence applied to the declaration as it is. 5 Com. Big. 378. A good finding on the money count. The non.application of the evidence should have been challenged upon the trial; and after verdict it is too late. But there was no surprise operated by giving evidence of the special contract, al1 hougti not stated in the declaration ; and therefore no reason for a new trial on that ground. 1 Esp. Dig. 121. 1 T R. 133. 2 Wils. 380. As to the objection to the verdict on the ground that the jury had allowed interest, it was proposed to remove it.by releasing t.-ie interest, if improperly allowed ; and that the amount, might be ascertained by adverting to Mrs. De Bruhl’s evidence, and the account filed.
   By the couut.

If there were no oljection to the declaration, nor to the evidence given to prove the promise of the deiendant to pay the plaintiff £35, per annum, for his wife’s board, yet this verdict could not be supported, because the amount found comprehends interest as well as principal, and ihe verdict does not clearly ex. press how-much is found by v -• of ¡merest, and how muchas principal: and it cannot be toilet tad from the terms of the verdict, or from any data therein given, what part of the aggregate stjm found, was meant to he found by way of interest, The inter* esl cannot be released, because it is not ascertained. Interest could not legally be found; for there is no contract in regard to interest stated ¿n the declaration, nor any contract which could carry interest. The jury, therefore, were not authorized to find any thing on score 0f interest. The verdict being evidently erroneous, and incapable of amendment by the court, must be set aside, and a new trial granted.

Grimke, and Brevakd, Justices, expressed a further opinion, on another ground, which Tkezevamt, J. did not join in, conceiving it unnecessary, viz. that Mrs. De Bruhl’s evidence was properly admitted, in maintenance of the general counts upon indebitalus assumpsit. That the only ground upon which the evidence could have been objected to at the trial, would have been that of surprise; that not being apprised by the declaration, that proof of the nature produced would be offered, to prove a special agreement, the party was not prepared to resist it. But this, it seems, was not pretended ; and therefore the objection could not prevail. Undoubtedly where the special agreement is the essential ground of action, it ought to be set forth in the declaration, and proved as laid. But in this case no such special agreement was stated, and there, fore none was necessary to be proved. If the evidence offered would be good only to maintain a special agreement, then it ought not to have been admitted, unless the special agreement was stated in the declaration : but if it was such as would be good to support an implied undertaking, as in this case, for necessaries to a wife, it was admissible and proper. The declaration in this case was for necessaries furnished to the defendant’s wife; the evi lence went to prove an express promise to pay for such necessaries. This express promise was not the essential ground of contract Stated ; but without it, the law would imply such a promise, and therefore the evidence was properly admitted. Whether such a promise could be implied under the circumstances of this case, Where the wife had eloped, or was parted from her husband, after committing adultery, would depend on the facts to be found by the jury. 1 Esp. Dig. 140,138.

Present, Gkimke, Tkezevant, and Brevakd, Justices.

Note. See 7 Johns. 132, where the plaintiff declares on a special agreement, and attempts to recover thereon, but falls altogether, he may recover on a general count, if the case be such, that if there had been no special agreement, he might recover for money had, and received, &e.  