I concur, with the other judges, that the verdict is imperfect; and that there ought to be a venire facias de novo. The principal doubt, with me, is respecting the title of the plaintiff, who claims'under.a conveyance made by one of the executors only, when the testator directed that his executors shall sell his lands, and appointed two executors. That doubt would, perhaps, have been removed, if the jury had found, whether John Dudgeon, the other executor was dead; or had refused to qualify previous to the sale and conveyance of the land to Thompson.
The judgment of the district court is to be reversed; the verdict set aside; and a venire facias de novo awarded.