— In the petition for partition the land is described as “ the homestead farm, which formerly belonged to George Ham, of said Shapleigh, deceased, and which was conveyed by William Ham to said Rufus, Ham and Thomas Ham by deed bearing date on the eighth day of April, A. D. 1823,” except about fifteen acres described; “the said farm adjoining on the south on the Lord place, now occupied by William Ham; on the westerly side on land of Jacob Ham, of Thacher Ricker, and the road; on the north side on land of William Sayward and son, or on land of one of them; and on the east on land of Libbeus Ham, of Levi Ham, of William Ham, and Gideon Ross,” excepting the same fifteen acres.
The respondent, with other pleas, pleaded sole seizin in “ one other lot of land, included in said petition, containing *263ten acres,” and particularly described. To this plea, there was originally a replication alleging, that the petitioners were seized thereof as tenants in common, and an issue to the country was joined.
The jury were instructed in substance, if they did not find the ten acre lot was embraced in the petition, “ they need have nothing to do with it.. It was out of the case.”
That lot appears to have been included in the farm of the respondent, and not to have been separated from it by any fence. The farm Of the respondent did not constitute, under that designation, any part of the description of the land described in the petition.
That lot was also embraced in the plan of the land, but it was placed there at the request of the respondent. These facts might afford no proof, that the land described in the petition included that lot. If the latter clause of that description were alone regarded, it might be included; but this could not be ascertained without proof to locate the land and the road, to which the land is described as adjoining. The description of the land in the petition does not require, that it should be bounded entirely by the lands of others named, and by the road; but only that certain portions of it should adjoin them. Whether the ten acre lot was a part of the land described in the petition, would not be determined by considering both clauses of the description. It does not appear to have constituted a part of the farm designated by the first clause, but this could not be determined without proof aliunde. There not appearing to be any inconsistency between the two elapses, if the jury should find, that it was not included in the land described in the petition, it would be a lot of land not only not in contest, but one, that could not be the subject of contest in those proceedings.
If parties, by their pleadings, put a matter in contest, by an issue in due form, which is incapable of being legally made so, they merely raise an immaterial issue, and when it becomes known to the Court to be such, it is its duty to *264prevent it being the occasion of trouble to the jury or to a correct determination and judgment on the matters of litigation. The omission of the jury to find such an issue would be of no importance. Ray v. Clemens, 6 Leigh. 600; Thornton v. Sprague, Wright, 645.
The instructions were therefore entirely correct.
If the presiding Judge could have been certain, without the finding of a jury, that the ten acre lot was not included in the land described in the petition, he might have^directed the pleadings respecting it to be struck out or disregarded. Not being able to determine that, without the assistance of a jury, he might, at any stage of the trial, authorize such an amendment or variance of the pleadings, as would prevent a finding upon an immaterial issue. 2 Saund. 319, b, note 6; Strout v. Durham, 23 Maine, 483.
It does not appear to have been in accordance with the English practice or our own, to allow costs to either party in such cases. Exceptions overruled.
Howard, Rice, Hathaway and Cutting, J. J., concurred.