Cox v. United States. 6 P. On the part of the United States it is claimed that the liability of the sureties must be governed by the rules of the common law; and the bond being joint and several, each is bound for the whole; and that the contribution between the co-sureties is a matter with which the United States have no concern. The general rule on this subject is well settled; that the law of the place where the contract is made, and not where the action is brought, is to govern in expounding and enforcing the contract, unless the parties have a view to its being executed elsewhere; in which case it is to be governed according to the law of the place where it is to be executed. 2 Burr. 1077; 4 Term Rep. 182; 7 Term Rep. 242; 2 Johns. 241; 4 Johns. 285. There is nothing appearing on the face of this bond indicating the place of its execution, nor is there any evidence in the case showing that fact. In the absence of all proof on that point, it being an official bond, taken in pursuance of an act of congress, it might well be assumed as having been executed at the seat of government. But it is most likely that, in point of fact, for the convenience of parties, the bond was executed at New Orleans, particularly as the sufficiency of the sureties is approved by the district attorney of Louisiana. But admitting the bond to have been signed at New Orleans, it is very clear that the obligations imposed upon the parties thereby looked for its execution to the city of Washington. It is immaterial where the services as navy agent were to be performed by Hawkins. His accountability for non-performance was to be at the seat of government. He was bound to account, and the sureties undertook that he should account for all public moneys received by him, with such officers of the government of the United States as are duly authorized to settle and adjust his accounts. The bond is given with reference to the laws of the United States on that subject. And such accounting is required to be with the treasury department, at the seat of government; and the navy agent is bound by the very terms of the bond to pay over such sum as may be found due to the [* 204] United States on such settlement; * and such paying over must be to the treasury department, or in such manner as shall be directed by the secretary. The bond is, therefore, in every point of view in which it can be considered, a contract to be exe cuted at the city of Washington, and the liability of the parties must be governed by the rules of the common law. The judgment of the court below is reversed, and the cause sent back with directions to issue a venire de novo. 7 P. 435; 10 P. 125; 11 P. 351; 16 P. 521; 5 H. 295; 17 H. 437; 19 H. 390. M'Arthur v. Porter. 6 P. DUNCAN M'ARTHUR, Plaintiff in Error, v. WESLEY S. PORTER, Defendant in Error. 6 P. 205. In an action of ejectment for a tract of land, described in the declaration by metes and bounds, the jury may find a verdict for the plaintiff as to part of the tract, and for the defendant as to the residue; and if they do so, the judgment should conform to the verdict. It is error for the court to order a general verdict and judgment for the whole land, upon such a finding. THE case is stated in the opinion of the court. Vinton and Doddridge, for the plaintiff. Ewing, contrà. STORY, J., delivered the opinion of the court. [* 210 ] This is a writ of error to the circuit court for the district of Ohio. The original action was an ejectment, brought by the defendant in error against the plaintiff in error, and the declaration (which contains several counts) describes the land demanded by specific metes and bounds. At the trial, the jury found a verdict in the following terms: "We, the jury, find the defendant guilty of the trespass in the plaintiff's declaration *mentioned, and [* 211 ] do assess the plaintiff's damages to one cent, and that the plaintiff do recover of the defendant the land described as follows, viz: beginning at the stone planted in Spencer's orchard, designated on Looker's map (referring to the diagram and report of the survey in court) by the letter B; thence running in a northwesterly direction to a point in Dock's line, 124 poles; eastwardly on Dock's line from the point marked D on Looker's map, a hickory and dogwood, thence westwardly with Dock's line 124 poles, to the hickory and dogwood aforesaid; thence running in a southwesterly direction to Taliaferro's line to the place of beginning." The counsel for the plaintiff then moved the court to instruct the jury to find a general verdict ; and thereupon the court did instruct the jury to find a general verdict, saying that the plaintiff would take possession at his peril ; which general verdict was found by the jury accordingly, and to this instruction the defendant excepted. Other exceptions were taken in the progress of the trial, but they have been abandoned at the argument, and the only question presented for our consideration is upon the instruction already mentioned. From the survey ordered by the court, as well as from the other proceedings and evidence in the cause, it abundantly appears that the case was one of conflicting titles, and the controversy was princi M'Arthur v. Porter. 6 P. pally as to boundaries. The verdict of the jury, as originally found, was for part only of the land sued for in the ejectment; fixing upon an intermediate line of boundary, different from that asserted by either party. It was, therefore, equivalent to a verdict finding a part of the tract of land sued for in favor of the plaintiff, and the residue in favor of the defendant. In other words, that the defendant was guilty of the ejectment as to a part, and not guilty as to the residue of the land described in the declaration. The real question, then, before the court is, whether the plaintiff, upon the proof of a title to a part of the premises sued for in the ejectment, is by law entitled to a general verdict for the whole of the premises sued for. That the action of ejectment is a fictitious action, and is moulded by courts to subserve the purposes of justice in a manner peculiar to itself, is admitted, but its professed object [ *212] is to try the titles of the parties; *and the jury are bound to pass upon those titles, as they are established by the evidence before them. They, therefore, do no more than their duty when they find a verdict for the plaintiff, according to the extent and limits of his title, as it is proved by the evidence. It is equally their right so to do, since it is comprehended in the issue submitted to their decision. If, therefore, they find by their verdict according to the truth of the case, that the plaintiff has title to part only of the premises in the declaration, and describe it by metes and bounds, and that so far the defendant is guilty; and as to the residue, find the issue for the defendant; such a verdict, in point of law, would seem to be unexceptionable; and if so, the judgment following that verdict ought to conform to it; and if it should be a general judgment for the whole premises demanded in the declaration, it would be erroneous. Such, upon principle, and the analogies of the common law, would be the just result; and the authorities clearly establish the doctrine, and it is confirmed as a matter of practice by the best text-writers on the subject; Adams on Ejectment, 294; Runnington on Ejectment, 432; Bac. Abridg. Ejectment, F. G. Thus, in Mason v. Fox, Cro. Jac. 632, where in an ejectment the jury found the defendant guilty as to part of the premises in the declaration, and not guilty as to the residue, all the judges were of opinion that the judgment ought to conform to the verdict, for it was consequent upon the verdict; but that an entry of a general or variant judgment was not a misprision of the clerk, and amendable even after error brought. In Denn d. Burgess v. Purvis, 1 Burr. 326, the plaintiff sued for a moiety of a certain parcel of land, and had a verdict for one third part of the premises; and the question was whether, in such a case, the plaintiff could recover for a less undivided part than he sued for. The court held M'Arthur v. Porter. 6 P. that she could, and that she was entitled to a judgment for the one third. Lord Mansfield on that occasion said, the rule undoubtedly is that the plaintiff must recover according to his title. Here she demanded half, and she appears entitled to a third, and so much she ought to recover; so, if you demand forty acres, you may certainly recover twenty acres; every day's experience proves this. And, he added, that the case of Ablett v. Skinner, 1 Sid. 229, was directly in point. In 2 Roll. Abridg. tit. Trial, p. 704, * pl. [ *213 ] 22, there is a case where an ejectment was brought of a messuage, and it appeared in evidence and was so found by the verdict, that only a small part of the messuage was built by encroachment on the lessor's land, not the residue. And the plaintiff had judgment for the parcel accordingly. Taylor v. Wilbore, Cro. Eliz. 768. These authorities (and the American authorities cited at the bar are to the same effect) demonstrate that the plaintiff is entitled to recover only according to his title; and that, if he shows a title to part only, he is entitled to have a verdict and judgment for that part, and If this be the true state of the law, then the jury were right in their original verdict; and the instruction of the court, that they should find a general verdict (the plaintiff having established a title to only a part of the land) was erroneous. no more. But it has been argued that such a general verdict, under such circumstances, is a matter of mere practice, and involves no inconvenience or repugnancy to the general principles of law, because the plaintiff must still at his peril take possession under his executor, upon a general judgment on such verdict, according to his title. That the whole proceedings in ejectment are founded in fictions, and the court will, in a summary manner, restrain the plaintiff if he takes possession for more than his title, so that no injustice can be done to the defendant. And certain authorities have been relied upon in support of these suggestions. But in what manner can the court, in a case circumstanced like the present, interfere with the plaintiff in taking possession. If the special finding of the jury in the case of interfering titles on a question of boundary, which may, and indeed usually does involve a comparison of the conflicting testimony of witnesses and other parol evidence, is to be set aside and disregarded, there is nothing upon the record to guide the plaintiff in regard to the extent of his title in taking possession; and he must be at liberty to take possession according to his own view of the extent of his title; nor can the court have, in such a case, any certain means to interfere, upon a summary application to redress any supposed excess of the plaintiff, for that would be in matters of fact to usurp the functions of a jury, and to re-try the cause upon its facts and merits, without M'Arthur v. Porter. 6 P. their assistance. It might be different in a case where the [214] plaintiff's title, as he proved it at the trial, was, upon his own showing, less than the lands of which he had taken possession; for that would involve no examination or decision upon conflicting matters of fact; and after all, what could this be but an attempt, indirectly, to do that justice between the parties, which the original verdict sought to do directly, and in a manner entirely comformable to law? As to the authorities relied on to sustain the practice of entering a general verdict, they do not in our opinion justify the doctrine for which they are cited. The language cited from Adams on Ejectment, p. 297, has been misunderstood. It does not mean that where the plaintiff obtains a verdict for a part of the premises only, he is entitled tɔ a general judgment for the whole premises sued for; for that would be inconsistent with what the author has said in a preceding page (p. 294); but only that the same form of entering the judgment for the parcel recovered is adopted as in cases where the whole is recovered; as, for example, if the plaintiff declares for forty acres in it, and he recovers only twenty acres, his judgment must be for the twenty acres; and it is at his peril that he takes out execution for no more than he has proved title to, since otherwise his execution would be bad, as not conforming to the judgment. The case of Cottingham v. King, 1 Burr. 621, was the case of a writ of error from Ireland, and the only question was whether the declaration, which was for five thousand messuages, five thousand cottages, &c., a quarter of land, &c., &c., was not void for uncertainty; a general verdict having been given for the plaintiff. One objection was, that the declaration was too uncertain to enable the sheriff to deliver possession, to which Lord Mansfield replied that, in this fictitious action, the plaintiff is to show the sheriff, and is to take possession at his peril of only what he was entitled to. If he takes more than he has recovered and shown title to, the court will, in a summary way, set it right. Now it is plain that his lordship was here addressing himself to a case where the declaration was general, and the verdict was general, for the whole premises; and not to a case where there was a verdict for a specified parcel only of the premises. In the [ *215] case *put, the judgment would be general, and the execution would conform to it; and therefore if the plaintiff took possession beyond his own title established at the trial, the court might interfere in a summary manner to prevent such a general recovery from working injustice. The same doctrine was afterwards held in Connor v. West, 5 Burr. 2672. But neither of these cases has any tendency to show that, upon proof of title to part of the prem |