— Philip EL Smith and George W. Smith executed their promissory note to Thomas J. Clark. Thomas J. Clark assigned the note by endorsement to William Clark, who, as such assignee, brought this complaint against the makers of the note, to 'which they filed an answer in four paragraphs, in each of which they admitted the execution of the note, and set up affirmative matter as a defence.
At this stage of the proceedings, Sarah J. Brown appears and makes application to become a party to the
After these issues were joined, demurrers were sustained for the want of facts to the second and third paragraphs of answer to the original complaint, and a reply filed denying the first paragraph, leaving the fourth paragraph unnoticed. The case was then tried by a jury and a verdict rendered in the following words :
“ We, the jury, find for the defendant Mary J. Brown, as against the plaintiff, William Clark ; and, as against the defendants Philip II. Smith and George W. Smith, we find for the defendant Sarah J. Brown, and assess her damages at six hundred dollars.” •
J u'dgmenf on the verdict.
William Clark and Thomas J. Clark moved the court, separately, for a venire facias de novo. The motions wrnre overruled and exceptions reserved. The ground taken in support of the motions was, that the verdict did not find upon all the issues. The motion of William Clark, we think, was properly overruled. The verdict was against him, and in favor of Sarah J. Brown ; but it is plain to us that the motion of Thomas J. Clark ought to have been sustained. There was no finding as to him. His general denial to the counter-claim put in issue the assign-
The court properly overruled the motion to reject the application and counter-claim of Sarah J. Brown. They are clearly sufficient.
The judgment is reversed, at the costs of.the appellee, and the cause is remanded, for further proceedings according to this opinion.