GOLDTHWAITE, J.
— In the examination of this case, we shall consider the several questions, in the order in which they have been presented by the argument of counsel; and
1. As to the sufficiency of the several counts of the declaration—
It is insisted that each count is bad, because there is no averment of the establishment of post offices at either Louisville or Tuskaloosa — nor of a post route, between these places — nor of the appointment of a post master at [228]*228Louisville. If the defendant is not liable for the neglect complained of, unless there were post offices established at these places, a post route designated, and a post master at Louisville appointed, there would be a reason for an averment of each of these facts; but his liability does not, nor can arise out of these or similar matters, as the declaration is framed.
It is charged with great precision in the three first counts, that the letter came to the hands and possession of the defendant, to be delivered to the plaintiff’s agent, to whom it was directed ; and that the defendant failed and refused to deliver it when demanded from him; whereby it was wholly lost. The two last counts aver it to have been lost by the neglect and carelessness of the defendant, after it came to his custody. It is laid down in all the authorities, that whenever the declaration shews a duty or a contract, the action on the case will well lie, although it may be questionable, if it lies for a mere non-feasance. In all cases of deposit, though they are said to arise in contract, there is also a moral duty, to deliver the thing deposited to the owner upon demand—Max vs Roberts, et al, (12 East, 89.)
The case made on these counts of the declaration, shews that the letter came to the hands of the defendant; and thus the law imposes the legal obligation, to deliver it to the owner when demanded, and a neglect or refusal to do so, is a tortious act, for which case will lie.
“ If,” says Judg”e Story, (in Ms treatise on bailment, p. 93,) “ the depository improperly refuses to re-deliver the deposit when it is demanded, he henceforth holds it at [229]*229his own peril. If, therefore, it is afterwards lost, either by his neglect, or by accident, it is the loss of the depositary ; for he is answerable for all defaults and risks, in such cases.”
It follows from these principles, that the averments contended to be necessary, are not so-; for the accountability of the defendant, does not grow out of any of the machinery incident to the post office department, but from the single act of refusing to deliver to the owner, a deposit in the hands of the defendant for a particular purpose.
It is next insisted, that it should be stated by what bank the notes were issued, in order that the court might be able to judge if it was authorised to issue notes.
The enunciation of this proposition is somewhat startling, when we reflect that there is within the United States, more than three hundred banks. No court could ex cathedra, undertake to determine from the statement made of the name of a bank, that it was authorised to issue bills; and if the averment was necessary, it would introduce great prolixity in pleading, as the mere statement of the names of many different banks, would very much encumber the record. A greater certainty ought not to be required in an action of this nature, than is in an indictment for larceny, of similar descriptions of property. As to such indictments, it has always been held not to be necessary to set out the instruments or bills ver batim, but a description of them, in a general manner, is sufficient — (2East’P. Crown,602,777;) — thus, one bank note for the payment of five pounds, of the value of five pounds, or the like—Rex vs Johnson, (3 M. & S. 539;)— [230]*230but in actions like this, a much less general description will suffice, as the thing is not recovered, but damages merely, for its loss.
It is further insisted, that the first, second and third counts, are bad, because they do not contain an averment, that the letter was in the office when demanded, or that it had been lost, by the carelessness of the defendant.
The authorities cited, do not shew that this is necessary ; but if it was, the averment is substantially made. Each of these counts alleges the letter to have been given into the hands of the defendant, and that he omitted and refused to deliver it, when demanded. It was not necessary for the plaintiff to allege that he continued to have it in possession. If it passed from the defendant’s possession lawfully, or without a culpable default by him, it was matter of defence which he was bound to shew; and the law will not presume, after it is traced to its hands, that it was not there when demanded from him.
.Another objection, on which great stress has-been laid, is, that no averment is made of the postage having been paid or tendered. No authority has been adverted to, which sustains this position, and the analogies of the law are all against it. There is no question as to the right to detain property subject to a lien, until the lien is discharged; but in no single case, so far as our researches have extended, is it necessary to allege a discharge or tender, in pleading.
The same right of lien, exists in the case of carriers, by land or water, and, indeed, in most cases of [231]*231bailment: yet in none of the forms used in the books, do we find such an allegation. Even in actions against ship owners, on bills of lading, where the condition is express, to deliver on payment of freight, no tender or offer to pay is ever averred. Indeed, it falls within the acknowledged principle, that all matters of defence, must be pleaded, or given in evidence; and the plaintiff need, in no case, negative a fact which should be advanced by the defendant, as a complete bar to the action. But the position itself is unsound, when applied to the case of things which are lost, because the reward is only due when the thing bailed has been securely kept or delivered.
It would be absurd to suppose that an individual was bound to pay for the transportation of that, which he never had received; or that the depository ought not to be made liable for a tortious act, in' relation to the thing deposited, without a tender of the necessary expenses or reward. The right to detain, wherever a lien exists, is unquestioned, but the mere right will not estop the inquiry into the fact, that the thing has been lost or destroyed.
The last objection taken to the declaration, is, that the fifth count is substantially a count in trover, and therefore bad. It is not perceived that this count, even if in trover, would be insufficient, as that action certainly would lie for money in a bag—Kettle vs Bromsell, (Willis, 118;) and we see no reason why it should not, for money or notes, sealed up in a letter.
But the case of Orton vs Butler, (5 Barn. & Ald. 652,) establishes no such principle as contended for. That [232]*232was an attempt to introduce the action of trover for money, not distinguishable from any other money; and to substitute the action of trover, for that of money had and received. In that case, it is admitted by the court, that the action would well lie for so many pieces of gold or silver.
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GOLDTHWAITE, J.
— In the examination of this case, we shall consider the several questions, in the order in which they have been presented by the argument of counsel; and
1. As to the sufficiency of the several counts of the declaration—
It is insisted that each count is bad, because there is no averment of the establishment of post offices at either Louisville or Tuskaloosa — nor of a post route, between these places — nor of the appointment of a post master at [228]*228Louisville. If the defendant is not liable for the neglect complained of, unless there were post offices established at these places, a post route designated, and a post master at Louisville appointed, there would be a reason for an averment of each of these facts; but his liability does not, nor can arise out of these or similar matters, as the declaration is framed.
It is charged with great precision in the three first counts, that the letter came to the hands and possession of the defendant, to be delivered to the plaintiff’s agent, to whom it was directed ; and that the defendant failed and refused to deliver it when demanded from him; whereby it was wholly lost. The two last counts aver it to have been lost by the neglect and carelessness of the defendant, after it came to his custody. It is laid down in all the authorities, that whenever the declaration shews a duty or a contract, the action on the case will well lie, although it may be questionable, if it lies for a mere non-feasance. In all cases of deposit, though they are said to arise in contract, there is also a moral duty, to deliver the thing deposited to the owner upon demand—Max vs Roberts, et al, (12 East, 89.)
The case made on these counts of the declaration, shews that the letter came to the hands of the defendant; and thus the law imposes the legal obligation, to deliver it to the owner when demanded, and a neglect or refusal to do so, is a tortious act, for which case will lie.
“ If,” says Judg”e Story, (in Ms treatise on bailment, p. 93,) “ the depository improperly refuses to re-deliver the deposit when it is demanded, he henceforth holds it at [229]*229his own peril. If, therefore, it is afterwards lost, either by his neglect, or by accident, it is the loss of the depositary ; for he is answerable for all defaults and risks, in such cases.”
It follows from these principles, that the averments contended to be necessary, are not so-; for the accountability of the defendant, does not grow out of any of the machinery incident to the post office department, but from the single act of refusing to deliver to the owner, a deposit in the hands of the defendant for a particular purpose.
It is next insisted, that it should be stated by what bank the notes were issued, in order that the court might be able to judge if it was authorised to issue notes.
The enunciation of this proposition is somewhat startling, when we reflect that there is within the United States, more than three hundred banks. No court could ex cathedra, undertake to determine from the statement made of the name of a bank, that it was authorised to issue bills; and if the averment was necessary, it would introduce great prolixity in pleading, as the mere statement of the names of many different banks, would very much encumber the record. A greater certainty ought not to be required in an action of this nature, than is in an indictment for larceny, of similar descriptions of property. As to such indictments, it has always been held not to be necessary to set out the instruments or bills ver batim, but a description of them, in a general manner, is sufficient — (2East’P. Crown,602,777;) — thus, one bank note for the payment of five pounds, of the value of five pounds, or the like—Rex vs Johnson, (3 M. & S. 539;)— [230]*230but in actions like this, a much less general description will suffice, as the thing is not recovered, but damages merely, for its loss.
It is further insisted, that the first, second and third counts, are bad, because they do not contain an averment, that the letter was in the office when demanded, or that it had been lost, by the carelessness of the defendant.
The authorities cited, do not shew that this is necessary ; but if it was, the averment is substantially made. Each of these counts alleges the letter to have been given into the hands of the defendant, and that he omitted and refused to deliver it, when demanded. It was not necessary for the plaintiff to allege that he continued to have it in possession. If it passed from the defendant’s possession lawfully, or without a culpable default by him, it was matter of defence which he was bound to shew; and the law will not presume, after it is traced to its hands, that it was not there when demanded from him.
.Another objection, on which great stress has-been laid, is, that no averment is made of the postage having been paid or tendered. No authority has been adverted to, which sustains this position, and the analogies of the law are all against it. There is no question as to the right to detain property subject to a lien, until the lien is discharged; but in no single case, so far as our researches have extended, is it necessary to allege a discharge or tender, in pleading.
The same right of lien, exists in the case of carriers, by land or water, and, indeed, in most cases of [231]*231bailment: yet in none of the forms used in the books, do we find such an allegation. Even in actions against ship owners, on bills of lading, where the condition is express, to deliver on payment of freight, no tender or offer to pay is ever averred. Indeed, it falls within the acknowledged principle, that all matters of defence, must be pleaded, or given in evidence; and the plaintiff need, in no case, negative a fact which should be advanced by the defendant, as a complete bar to the action. But the position itself is unsound, when applied to the case of things which are lost, because the reward is only due when the thing bailed has been securely kept or delivered.
It would be absurd to suppose that an individual was bound to pay for the transportation of that, which he never had received; or that the depository ought not to be made liable for a tortious act, in' relation to the thing deposited, without a tender of the necessary expenses or reward. The right to detain, wherever a lien exists, is unquestioned, but the mere right will not estop the inquiry into the fact, that the thing has been lost or destroyed.
The last objection taken to the declaration, is, that the fifth count is substantially a count in trover, and therefore bad. It is not perceived that this count, even if in trover, would be insufficient, as that action certainly would lie for money in a bag—Kettle vs Bromsell, (Willis, 118;) and we see no reason why it should not, for money or notes, sealed up in a letter.
But the case of Orton vs Butler, (5 Barn. & Ald. 652,) establishes no such principle as contended for. That [232]*232was an attempt to introduce the action of trover for money, not distinguishable from any other money; and to substitute the action of trover, for that of money had and received. In that case, it is admitted by the court, that the action would well lie for so many pieces of gold or silver. There never was, nor can there ever be a serious question, but that trover can be brought for bank notes, if sealed up in a letter, as well as for money in a bag—(Bac. Ab. Trover, D.)
2. As to the admission of the evidence objected to—
It is contended, that a witness cannot be permitted to state that lie is a public officer, without producing his commission, because the commission is better evidence of the appointment, than the assertion of the individual. There is nothing in this objection: it has been so often settled, that it is now at rest. Even in cases affecting the lives of individuals, the rule is admitted to prevail—Berryman vs Wise, (4 Term. Rep. 366;) Potter vs Luther, (3 John. 431;) Gordon’s case, (1 East’s P. C. 315 ;) Reed vs Gillet, (12 John. 296.)
3. That no judgment could be legally rendered on the verdict of the jury, such as is stated in the record.
Before we consider this question, we may remark, that we are strongly impressed with the belief, that this verdict, in the words stated, was not returned by the jury which tried the cause; and that it is probably the act of the clerk, in making up the formal judgment on the minutes of the court. If so, it could have been amended by the 'Circuit court, from the verdict itself. But no such power exists in this court at this time, and whatever may be the facts as existing in the court below, we can only look to the record as we find it.
[233]*233The words of tlic verdict are, “ on their oaths do say, that the defendant did undertake and assume upon himself in manner and form as the plaintiff hath complained, and they assess the plaintiff’s damages, by occasion of the defendant’s non-performance of the said undertaking and, assumptions, to one thousand and seventy-five dollars.”
The utmost favor has always been extended to verdicts, and they are not construed strictly, as pleadings are; and we find this rule laid down — (Hob. 54.) “ That though the verdict may not conclude formally and punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it serve.”
In the case of Hawks vs Crifton, (2 Burr. 698,) on a writ of error upon a judgment of the King’s Bench, in Ireland, in an action of trespass for assault and battery, the defendant pleaded not guilty, and son assault: to the latter plea, the plaintiff replied, de injuria sua propria, &c. — and issues were joined. The verdict was, “ guilty of the trespass within written,” and judgment rendered thereon. The judgment was affirmed, and the rule laid down in the case in Hobart, is cited with unqualified approbation. It will be observed, that here, by that plea, the fact of the assault was admitted, but there was also another issue on the plea of not guilty, so that there was a direct response to one of the pleas, and a verdict could not have been found for the plaintiff, unless the jury had negatived the defence set up by the defendant’s plea of son assault.
Lord Mansfield says, “ it is very clear what the jury meant, and the verdict ought not to be avoided, though [234]*234the clerk may have been irregular faulty in point of form.”
In the case of Porter vs Rumery, (10 Mass. 64,) the facts were, that the defendant to a writ of right, pleaded not guilty, and a plea of non tuum and disclaimer, to which the plaintiff replied that the defendant was in possession, and on which issue was joined, as well as on the plea of not guilty. On these issues, the jury returned a general verdict of not guilty: judgment was rendered for the defendant, and the plaintiff prosecuted his writ of error. It was held by the Supreme court of Massachusetts, that the judgment was well enough, for the jury could not have returned the verdict they did, unless they had also passed on the special issue.
The case of Fairfax’s ex’r vs Fairfax, (5 Cranch, 19,) was an action of assumpsit against an executor' — pleas non assumpsit and plene administravit, and issues thereon. The jury found a verdict, which was thus recorded: “ We, the jury, find the issues for the plaintiff, and assess the damages to two hundred and twenty dollars, and ninety-five cents;” Judgment was rendered on this verdict against the executor, de bonis testator is. The Supreme court reversed the judgment, because it was not specially found what assets the defendant had to be administered. Yerdiets rendered on the issue of plene administravit may be considered as an exception to the general rule, from the necessity which arises in the particular case of finding a special verdict for the amount of assets to be administered; as, if there was but ten dollars unadministered, the verdict must be for the plaintiff, but notwithstanding as to the balance beyond the sum [235]*235found administered, the judgment would only be quando acciderunt. Hence arises the necessity, in this particular case, for the great certainty required.
In the case of Patterson vs the United States, (2 Wheat, 221,) the action was debt, on a bond conditioned that certain merchandise, which had been imported into the United States, and re-shipped, should not be re-landed within the United States, and that the certificates ants' other proof of the delivery of the cargo at some place without the United States, should be produced at the collector’s office at Baltimore, within one year,
The defendant, after oyer, pleaded—
1. Performance;
2. That the merchandise was not re-landed within the United States, and certificates were produced, &c.;
3. A similar defence.
The replication to the first plea, alleged a breach of the bond, by not producing proof, &c. as required by the condition; to which there was a rejoinder* and issue.
There was an issue also on the second plea,
To the the third, there was a demurrer, on which judgment was given for the United States.
On the issues, the jury returned this verdict: “ That the within mentioned writing obligatory, is the deed of the within named Robert Patterson, &c. and they find there is really and justly due upon the said writing obligatory, the sum 23,989 dollars, and 58 cents.” On this yerdict judgment was rendered, which was reversed by the Supreme court; and Judge Washington thus declares the rule : “ A verdict is bad, if it varies from the issqet in a substantial matter, or if it find only a part of that [236]*236which is in issue. Whether the jury find a general or special verdict, it is their duty to decide the very point in issue, and although the court, in which the cause is tried, may give form to a general finding, so as to make it har-monise with-the issue, yet, if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered on the verdict.”
“If the jury find the issue, and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in a verdict are substantially variant from those which are in issue.”
Unless these cases are attentively examined, they will seem to conflict with each other ; but the seeming discrepancy vanishes, when the rule extracted from Hobart is analised. It is not necessary that the verdict should conclude formally or punctually to the words of the issue, but the point in issue must he ascertained out of the finding. In the cases from Burrow and Massachusetts Reports, this could be done, but it could not be done in the case from Wheaton. The issue was, whether a particular act had been done; the jury found a different matter not in issue between the parties.
Let us now apply the rules, ascertained by these cases, to the present issue and verdict. The charge against the defendant is negligence, and the issue is formed on that alone. The jury, instead of finding this issue, return a verdict that the defendant undertook and assumed on himself, in manner and form as the plaintiff had complained, and they assess the plaintiff’s damages, by oc[237]*237casion of the defendant’s non perfoi'íncmcc of the said undertakings and assumptions, at, &c. Now, can we conclude the point in issue, out of this finding ? We cannot, without saying that we will presume the fact, from the mere circumstance that a trial has been had, and a verdict returned. The point in issue was the negligence of the defendant, and this we cannot r,- ¡her from the words of the verdict. The facts found are (to trae the words of Judge Washington,) substantially variant from those which are in issue.
Another rule might he given which will very satisfactorily determine that this verdict is hud.
A verdict to sustain a judgment must be such as an appellate court will direct an inferior tribunal to enter judgment upon. If this rule is founded in principle, (and that it is we cannot doubt,) let the case be supposed of a verdict such as this actually returned, and the court considering it as variant from, or no answer to the issue 3 refuse to enter judgment on it, ought an appellate court to compel them so to do, by mandamus or otherwise ? We think it assuming a greater latitude of construction than has ever obtained.
The view we have taken is also confirmed by the case of Steans vs Burrell, (1 Mason, 153,) in which Judge Story observes, “ that where a verdict is not expressed substantially in the terms of the issue, the case ought to be extremely clear)that should induce a court to make it the ground of a final judgment.” As the verdict is not responsive to the issue for this defect, the judgment of the Circuit court must he reversed, and the cause remanded.