It is difficult to conceive upon what ground a new trial was refused. That the verdict did not find any issue properly presented by the pleadings is quite too clear for argument; and that a verdict which does not find the issue is bad and will not support a judgment is a proposition too familiar to be questioned. The general denial put in issue the material facts alleged in the petition, and this was the only issue properly presented by the record. Instead of deciding this issue, the jury proceeded to determine matters of fact not committed to them for trial and matters of law which it appertained to the court to determine. They seem to have forgotten that theirs was the province, not of arbitrators, but of jurors. Their award, however it may have addressed itself to the sense of justice of the parties, did not constitute a legal verdict on which to rest the judgment of the court. The special matter pleaded in justification of the trespass presented an immaterial issue. The facts alleged constitute no defense to the action. It cannot be supposed that the agency commit t.ed to an overseer embraced the authority to license the defendant to destroy the property of his employer, or that the permission or instruction to that effect alleged to have been given by him was within the scope of his legitimate authority as overseer. It would be equally preposterous to maintain that the defendant had the legal right to destroy the auimals belonging to liis neighbor, which may have broken into his inclosure. The law points out a very different mode of redress. (Acts of 1840, pp. 170, 180, sec. 2.)
If the defendant had protected his premises by a lawful inclosure, ho would have been entitled to recover of the plaintiff satisfaction for tho injury sustained. (Ib.) But there is no averment iu the answer that the iuclosure alleged to have been broken was a sufficient or lawful one.
There was no exception to the legal sufficiency of the answer; hut we have heretofore decided that the omission to except cannot constitute a pleading which discloses no legal right the basis of an adjudication. (Borden v. Houston, 2 Tex. R.; Goodrich v. Patterson, 3 Tex. R.)
The judgment must he reversed and the cause remanded for further proceedings.
Judgment reversed.