Opinion
11-08-1817
Gregory v. Jacksons
Wickham for the plaintiff in error. Bouldin contra.
Judgment reversed, and a venire de novo awarded.
SYLLABUS
In Ejectment, the declaration was, for " ten Messuages, twenty cottages, one thousand acres of woodland, one thousand acres of arable land, one thousand acres of meadow and one thousand acres of pasture, lying and being in the County of Mecklenburg," without setting forth any boundaries. --The verdict was, " We of the Jury find for the plaintiff his term yet to come in four hundred acres of land parcel of the premises in the declaration mentioned, and in the possession of the defendant," & c. --with no farther description. Judgment being rendered for the plaintiff, the defendant obtained a Supersedeas from this Court.
Wickham for the plaintiff in error. The verdict is so uncertain that the Sheriff could not deliver possession of the land recovered. The very point is decided in Clay v. White, 1 Munf. 162.
Bouldin contra. There is a difference between the Verdicts, in that case, and this. The verdict now in question is not to be distinguished from a general one. --Though the declaration demands a thousand acres, yet, if four hundred only are really in controversy, a general verdict is sufficient.
Such certainty as will enable the Sheriff to deliver possession, is not required in Ejectment; for the lessor of the plaintiff is to shew the Sheriff the land, and take possession at his peril. Suppose, the declaration had demanded " four hundred acres part of a larger tract," and the Jury had found a general verdict, a Judgment upon it could not have been set aside. The verdict in this case is in the same words with such a declaration and verdict.
Cottingham v. King, 1 Burr. 629; Connor v. West, 5 Burr. 2673.
The case of Clay v. White was on a special verdict, in which greater particularity is required than in general verdicts. In that case too, it was uncertain whether the plaintiff was entitled to recover at all. It did not appear who was in possession of the ninety acres, or against whom the plaintiff was to recover.
Was it ever demanded of a plaintiff in Ejectment, upon a declaration mentioning only a certain number of acres, that he should shew in what part of the defendant's possessions they lay?
Wickham in reply. The Jury have said that the plaintiff is entitled to his term yet to come in 400 acres part of the premises in the declaration mentioned. I say what part?
This is not a general Verdict. If the suit were for an undivided moiety, and the Jury found the plaintiff entitled to an undivided tenth part, there would in such verdict be no uncertainty. But in this there is. There should have been an Order of Survey, and a finding by metes and bounds. The cases in Burrow are cases of general Verdicts, for whole tracts. There is no case where such a verdict as this has been supported.
Where the declaration is so defective, as that no judgment can be entered upon it, I think that even the act of Jeofails can not cure it. Here the defect is not in the Verdict only, but the declaration; and not in form, but in substance.
OPINION
JUDGE ROANE pronounced the Court's opinion, that the Verdict in this case is too uncertain to warrant a judgment for the appellee; --in this, that it does not sufficiently designate the boundaries of the 400 acres of land, which they find for him, nor refer to any certain standard by which that defect may be supplied. The Judgment is therefore to be reversed, and a venire de novo awarded.