DEFECTS WHEN AIDED. 2dly. By intend verdict. Instances. bellous imputation, and giving it an actionable meaning, as applied to the plaintiff, the declaration will not be aided by verdict, although there be an innuendo that the defendant meant to charge that the plaintiff was guilty of a specified offence (t). And a verdict will not cure a statement in a ment after declaration that the defendant published a libel," in substance as follows;" or spoke slanderous words, " to the tenor "following;" although the mat[*682] ter be set out in hæc verba (u). So, where the plaintiff brought an action of trespass on the case, as being entitled to the reversion of a certain yard and wall, to which the declaration stated a certain injury to have been committed, but omitted to allege that the reversion was, in fact, prejudiced, or to show any grievance which, in its nature would necessarily prejudice the reversion; the Court arrested the judgment, after a verdict had been given in favor of the plaintiff, and held the fault to be one which the verdict could not cure (a). And where a declaration in debt, for not setting out tithes, on the statute 2 & 3 Edw. 6, c. 13, s. 1, omitted to state that the tithes had been yielded and paid, and of right ought to have been paid, within forty years next before the passing of the act; the Court held that it was defective, even after verdict, and the judgment was arrested (y). When a count in tive is aid ed by verdict. Where several causes of action have been stated in one count, one of which is sustainable, but the others not, if there be a verdict for the plainpart defec- tiff with general damages upon the whole count, such verdict will be sustained by the intendment and presumption that the judge duly directed the jury not to find damages upon the defective allegations (z). But if a declaration contain several counts, any of which is wholly defective, and general damages upon the whole declaration be given, the judgment would be arrested or reversed on error (a). 3dly. De-' tects aided by the statute of Jeofails. 3dly. Mistakes and omissions in the declaration, and other subsequent pleadings, are often times cured by the statutes of jeofails, which declare (b), that "judgment, after verdict (c), shall not be stayed or reversed by reason of any mispleading, lack of color, insufficient pleading or jeofail, or other default or negligence of the parties, their counsellors or attorneys (d); want of form in any count, declaration, plaint, bill, suit, or demand (e); lack of averment of any life, so as the person be proved to be alive (ƒ): want of any profert or the omission of vi et armis, or contra pacem, mistaking the christian name or surname of either party (g), sums, day, month, or year, in any bill, declaration, or pleading, being right in any writ, plaint, roll, or [*683] record preceding, or in the same roll or record wherein the same is *committed, to which the plaintiff," (or more properly the defendant)" might have demurred, and shown the same for cause; want of the averment of hoc paratus est verificare or hoc paratus est verificare per recordum, or for DEFECTS WHEN AIDED. not alleging prout patet per recordum, or the want of a right venue, so as the cause were tried by a jury of the proper county where the action is laid (h); or any other matters of like nature, not being against the right of 3dly. By the matter of the suit, nor whereby the issue or trial is altered" (i). the statutes of Jeofails. The statutes of jeofails are extended by the statute for the amendment of the law (k) to judgments entered upon confession, nihil dicit, or non sum informatus (1), in any Court of record; and it is thereby enacted, that "no such judgment shall be reversed; nor any judgment upon any writ of inquiry of damages executed thereon be stayed or reversed, for or by reason of any imperfection, omission, defect, matter, or thing whatsoever, which would have been aided and cured by any of the said statutes of jeofails, in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ or bill, and warrants of attorney duly filed according to law" (m). A motion in arrest of judgment, after judg ment by default is to be considered exactly the same as if the question had arisen on a general demurrer (n): and on demurrer, we may remember, that by the statute 4 & 5 Ann. c. 16, the Court are required to give judg ment according to the very right of the cause, without regarding any such imperfections, omissions, and defects, as are particularly mentioned in the act, or any other matter of like nature, except the same shall be specially set down and shown for cause of demurrer, notwithstanding the same might have heretofore been taken to be matter of substance, and not aided by the [684] statute of Queen Elizabeth, so as sufficient matter appear in the pleadings upon which the Court may give judgment, according to the very right of the cause (o). As there cannot however be the same intendment in support of a judgment by default as after a verdict, it has been holden that the statutes of jeofails do not protect judgments by default against objections that are cured by a verdict at common law, but such only as are remedied after a verdict by the statutes (p). It has been determined that the statute 32 Hen. 8, c. 30, extends to penal actions (9). And by the statute 4 Geo. 2, c. 26, which provides that all legal proceedings shall be in the English language," all statutes for the reformation and amending of the delays arising from any jeofails, shall and may extend to all and every form and forms, and to all proceedings in (h) The Statute 16 & 17 Car. 2, c. 8, which cures the want of a right venue, so as the cause be tried by a jury of the proper county where the action is laid, seems to extend, not only to cases where there is a wrong venue in a right county, but also to those where the cause has been improperly tried in a wrong county, 7 T. R. 583; and see 1 Lord Raym. 330; Carth. 448, S. C.; Willes, 431; 2 East, 580; 1 Saund. 248, (3); 2 Id. 5, (3), 5th edit. But where in ejectment for lands in Cardiganshire the venire was awarded out of Shropshire, upon the suggestion of its being the next English county, the Court, after verdict for the plaintiff, arrested the judgment on the ground of a mis-trial, Herefordshire being the next adjoining English county to South Wales; although it appeared that Shropshire was in fact nearer to the lands in question, and the cause might have been more conveniently tried there than in Herefordshire; 2 M. & Sel. 270. (i) 16 & 17 Car. 2. c. 8. These latter words should be construed literally; see (1) But this statute does not seem to ap (m) By a subsequent act, 9 Ann. c. 20, s. (0) Ante, 662 to 661; and see 10 East, (p) 2 Str. 933; and see 1 Saund. 228, (1); 13 East, 407; Tidd, 9th edit. 927; ante, 674. (q) 3 Lev. 375; 1 Str. 136; 2 ld. 1227; Doug. 115; ante, 664. 684 DEFECTS WHEN AIDED. 3dly, By the statute of Jeofails. DEFECTS IN PLEADING, WHEN AND HOW AIDED. Courts of justice (except in criminal cases), when the forms and proceedings are in English; and all errors and mistakes are amendable and remedied thereby, in like manner as if the proceedings had been in Latin.” And though by the 16 & 17 Car. 2, c. 8, the several omissions, variances, and defects therein mentioned are required to be amended by the judges of the Court where the judgment is given, or the record removed by writ of error, yet an actual amendment is never made on this statute; but the Court will allow the benefit of the act to be attained by overlooking the exception (r). (7) 2 Str. 1011; Cas. Temp. Hardw. 314, Stat. vol. i. 14, n. (a). 315; Tidd, 9th edit. 928; Chitty's Col. APPENDIX. THE PRINCIPAL STATUTES AND RULES AFFECTING PLEADING IN GENERAL. [See the Statutes of Amendments and Jeofails collected, Chitty Col. Stat. Tit. Amendments and Jeofails.] 4 ANNE, CAP. XVI. An Act for the better Amendment of the Law, and the better Advancement of 7, this sta informa ranto. without to For the amendment of the law in several particulars, and for the easier, By 9 Ann. speedier, and better advancement of justice, be it enacted by the Queen's C. 26, sect. most excellent Majesty, by and with the advice and consent of the lords tute is exspiritual and temporal, and commons, in this present parliament assembled, tended and by the authority of the same, and from and after the first day of Trinity writs of term which shall be in the year of our Lord one thousand seven hundred and mandasix, where any demurrer shall be joined, and entered in any action or suit in mus and any court of record within this realm, the judges shall proceed and give judg- tions in ment according as the very right of the cause and matter in law shall appear nature of unto them, without regarding any imperfection, omission, or defect in any writ, quo warreturn, plaint, declaration, or other pleading, process, or course of proceeding Judges whatsoever, except those only which the party demurring shall specially and shall give particularly set down and express, together with his demurrer, as causes of judgment the same, notwithstanding that such imperfection, omission, or defect might on demurhave therefore been taken to be matter of substance, and not aided by the rer, &c. statute made in the twenty-seventh year of Queen Elizabeth, intituled, " An regarding Act for the Futherance of Justice in case of Demurrer and Pleadings," so any defect as sufficient matter appear in the said pleadings, upon which the Court may in writ, give judgment according to the very right of the cause; and therefore from declaraand after the said first day of Trinity Term, no advantage or exception shall other be taken of or for an immaterial traverse; or of or for the default of entering pleading, pledges upon any bill or declaration; or of or for the default of alleging the unless bringing into Court any bond, bill, indenture, or other deed whatsoever men- there be a special detioned in the declaration or other pleading; or of or for the default of alleging murrer the bringing into Court letters testamentary, or letters of administration; showing or of or for the omission of vi et armis et contra pacem, or either of them; or the defect. of or for the want of averment of hoc paratus est verificare, or, hoc paratus 27 Eliz. est verificare per recordum; or of or for not alleging prout patet per recordum; cap. 5. but the Court shall give judgment according to the very right of the cause as aforesaid, without regarding any such imperfections, omissions, and defects, or any other matter of like nature, except the same shall be specially and particularly set down and shown for cause of demurrer. tion or 16. tended to 4 Anne, c. *II. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term, all the statutes of jeofails shail be extended Statutes of to judgments which shall at any time afterwards be entered upon confession, jeofails ex- nihil dicit or non sum informatus, in any Court of record; and no such judg judgments ment shall be reversed, nor any judgment upon any writ of inquiry of damages executed thereon be staid or reversed, for or by reason of any imperfection, omission, defect, matter, or thing whatsoever, which would have been aided and cured by any of the said statutes of jeofails in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ or bill, and warrants of attorney duly filed according to the law as is now used. on nihil dicit, &c. When warrants of attor ney shall be filed. Defendant, &c. III. Provided always, and be it enacted by the authority aforesaid, that the attorney for the plaintiff, or demandant in any action or suit, shall file his warrant of attorney with the proper officer of the court where the cause is depending the same term he declares; and the attorney for the defendant or tenant shall file his warrant of attorney as aforesaid, the same term he appears, under the penalties inflicted upon attorneys by any former law for default of filing their warrants of attorney. IV. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term it shall and may be lawful for any demay plead fendant or tenant in any action or suit, or for any plaintiff in replevin, in any Court of record, with the leave of the same Court, to plead as many several matters thereto, as he shall think necessary for his defence. several matters. Not extend to qui tam actions. XI. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term, no dilatory plea shall be received in any Court of record unless the party offering such plea, do, by affidavit, prove the No dilato- truth thereof, or show some probable matter to the Court to induce them to believe that the fact of such dilatory plea is true. ry plea unless on affidavit. Action of debt brought on single bill or judg money XII. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term, where any action of debt shall be brought upon any single bill, or where action of debt or scire facias, shall be brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such ment, after action or suit, and where an action of debt is brought upon any bond which hath a condition or defeazance to make void the same upon payment of a paid, such lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators, have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the defeazance or condition of such bond, though such payment was not made strictly according to the condition or defeazance; yet it shall and may nevertheless be pleaded on bonds. in bar of such action, and shall be as effectual a bar thereof, as if the money had been paid at the day and place according to the condition or defeazance, and had been so pleaded. payment may be pleaded in bar. The like Principal est on bonds XIII. And be it further enacted by the authority aforesaid, that if at any and inter- time, pending an action upon any such bond with a penalty, the defendant shall bring into the Court where the action shall be depending, all the principaid in pal money, and interest due on such bond, and also all such costs us have Court, &c. been expended in any suit or suits in law or equity upon such bond, the said money so brought in shall be deemed and taken to be in full satisfaction and discharge of the said bond, and the court shall and may give judgment to discharge every such defendant of and from the same accordingly. 9 GEO. IV. Cap. 14. 9 G. 4, c. An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements. [9th May, 1828.] 14. WHEREAS by an Act passed in England in the twenty-first year of the reign |