The opinion of the Court, at a subsequent term, was delivered by

In this case the demandants have moved for a new trial on two grounds. 1. The alleged insufficiency and incorrectness of the verdict. 2. The refusal of the presiding Judge to give a requested instruction to the jury.

On the first ground the reasons assigned are, I. that the verdict does not find the issue joined by the parties, and submitted to the jury. 2. Because the jury have not found that the defendant either did, or did not disseise the demandants, which was the only issue submitted to them. 3. Because the facts which they have found are immaterial: and 4. Because the verdict is contrary to the evidence and against the weight of evidence. The cause was tried on the general issue. The first three of the above reasons may be examined together. *260The alleged disseizin of the demandants by the defendant, for any period of time, is not expressly, and in terms, found by the jury ; and perhaps cannot, by any legal intendment, be considered as established by the verdict; but they have expressly found that, at the time of the commencement of the action, the defendant was not in possession of the demanded premises. The fact of possession was not admitted by the general issue being pleaded, as was formerly the law in this State. That principle was changed, or rather abolished by the statute of March 8th, 1826, ch. 344. Now, on the general issue, according to the provision of the second section, “ the “ jury shall on the evidence, consider, not only the question of “ title, but whether the defendant holds possession of the same “ (premises) or any part thereof, and return their verdict ac- “ cordingly.”

If the jury upon the evidence, could not on their oaths find that the defendant had committed any disseizin ; or, if he had, and they were satisfied that it had, in any manner, been purged and done away, prior to the commencement of the action, as was evidently their opinion, then they could not have found any fact, decisive of the action, except that which they have found : and such finding is correct and proper according to the provision of the act of March 30th, 1831, for abolishing special pleading. The only question then, as to the points under consideration is, whether the omission of the jury to find the affirmative or negative of the alleged disseizin, in the formal issue joined, is of such a nature as to require the Court to set aside the verdict and grant a new trial. It is certainly a correct principle of the common law, that a verdict which finds part of the issue, and nothing as to the residue, is insufficient for the whole ; as if an information for an intrusion be brought against one for intruding into a messuage and 100 acres of land, upon the general issue the jury find against the defendant the land, but say nothing of the house. Co. Litt. 227. So if two are charged and one is found guilty, and the verdict is silent as to the other. 21 Vin. Ab. 431,432. In the case before us there is no such omission. The finding of the jury has reference to the whole of the demanded premises, and disproves the defen*261dant’s possession : and there is but one defendant. Nor is this like the case of two pleas and issues, one of which is found for the plaintiff, and there is no finding whatever, as to the other. Such a verdict would be inconclusive and bad; for, had the other issue been found, it might have been found for the defendant, which would, of course, have entitled him to judgment. In the case before us, if the jury had found, in addition to what they have found, that the defendant did disseise the demandants as they have alleged, or that ho did not, what effect could have been produced by a finding of the fact either way ?

It is a settled principle that where the defendant pleads several pleas to the same count, or, under the general issue, in virtue of the before mentioned act of March 30, 1831, places his defence on several distinct grounds relied on ; if he obtains a verdict on any one issue, or any one of such distinct grounds, he will be entitled to judgment, though the other issues are found, or other grounds of defence arc decided in favour of the plaintiff. Now, the jury by their verdict have decided and found a fact in favour of the defendant, which constitutes a substantial defence, if it was properly decided and under correct instructions, why should the verdict be pronounced fatally defective ? why is not the present case one to which the maxim may be safely applied, utile per inutile non vitiatur. Mr. Dane, vol. 6, page 236, says, that “ another rule is, if the verdict “ do not find the material matter in issue, with proper certainty, “ it is bad; for there is not any sufficient foundation for the “ Court to give judgment on ; otherwise, if only uncertain as to “ matter not essential to the gist of the action.” The two statutes before referred to, have so changed the course of proceeding as to render it highly expedient, if not absolutely necessary, in many cases for the verdict to be broader than the issue, and to find facts in addition to it. For instance, in an action of replevin the defendant must plead the general issue — noncepit, which issue must be joined, though the only question to be hied may be, whether the plaintiff is the owner of the property replevied. In such a case the jury must find the formal issue in favoured the plaintiff; but they must also find that the pro*262perty replevied at the time of the taking, belonged to the plaintiff, if such is proved to be the fact. The case before us furnisher another instance of the necessity of extending the verdict beyond the terms of the issue. These are novelties made necessary by the statutory provisions we have mentioned, which seem to render common law, principles not perfectly applicable to the case under consideration. For the reasons we have thus assigned, we think the objections to the form of the verdict cannot be sustained on any sound principles. Neither do we perceive that the finding of the jury is against evidence, or the weight of evidence. The words in the act of March 8, 1826, “ wheth- “ er the defendant holds possession,” have been construed to mean actual possession, either in person or by a tenant. Jordan v. Sylvester, 7 Greenl. 335. There was no proof of such possession for nearly six years before the date of the writ.

On the second ground, the question is, whether the verdict ought tobe disturbed because the presiding Judge declined giving the requested instruction, mentioned in his report. The deed from Daine, junior, to the defendant, was registered upwards of two months before the commencement of the action. Was the registry of that deed, unexplained or uncontradicted, taken in connection with the defendant’s declarations as to his possession fence, which were made six or seven years before, sufficient evidence to prove actual possession of the premises by the defendant, more than two months afterwards, or at any previous time ? We have several times decided, that when a grantee enters into open and actual possession, though of only a part of a tract or parcel of land, under a recorded deed, purporting to convey the .same to him by plain and intelligible boundaries or description, such possession and improvement, uncontrolled by other evidence, constitutes a disseizin of the true owner as to the whole; but a recorded deed alone does not constitute a disseizin ; nor is it, of itself, any evidence of the actual possession of the grantee. We think that such registry, in connection with the declarations as to the fence, were not sufficient evidence of such possession in the present case, and that therefore the requested instruction was properly withheld.

The consequence is, that there must be

Judgment on the verdict.