ance is aided if the defendant set out the deed on oyer, and plead non est DEFECTS factum (s). WHEN AIDED. 2dly. By verdict. The second mode by which defects in pleading may be, in some cases, intendaided, is by intendment after verdict. The doctrine upon this subject is ment after founded on the common law, and is independent of any statutory enactments (). The general principle upon which it depends, appears to be that where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission, is cured by the verdict (u) (1). The expression cured by verdict signifies that the Court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleading, was duly (s) Ante, 433, 434. (t) See 1 Saund. 228, n. 1. (u) Id. and see the authorities there cited; Dougl. 679; and see per Ld. Ellenborough, 1 (1) See Vandersmith v. Washmein, 1 Harr. & Gill, 43. After verdict the court will support the declaration by every legal intendment, if there is nothing material on record to prevent it. Warren v. Litchfield, 7 Greenl. 63; Dobson v. Campbell, 1 Sumner, 319; Vaughan v. Dickens, Harper, 26; Addington . Allen, 11 Wend. 375; Manwell v. Manwell, 14 Vermont, 14 Carrell v. Peake, 1 Peters, 24; Hamilton v. Harvey, 4 Yeates, 129; Jersey Co. v. Halsey, 2 South. 750; Morey v. Homan, 10 Vermont, 564. Emmons v. Elderton, 26 Eng. Law & Eq. 1. But nothing will be presumed to have been proved even after verdict, excepting what is alleged, or necessarily implied from what is alleged. Harding v. Cragie, 8 Vermont, 509 S. P.; Vadakin v. Soper, 1 Aik. 289. A declaration or other pleading, setting forth a good title or ground of action defectively will be cured by a verdict. Read v. Chelmsford, 16 Pick. 128; Ward v. Bartholomew, 6 Pick. 409; Morey v. Homan, 10 Vermont, 565; Moore v. Boswell, 5 Mass. 306; Riddle v. Locks and Canals, 7 Mass. 169; Wheeler v. Train, 3 Pick. 255; Richardson v. Woodstock, &c. 6 Vermont, 496; Crocker v. Whitney, 10 Mass. 316, 318; Cushing v. Adams, 18 Pick. 100; Worster v. Canal Bridge, 16 Pick. 541; Avery ». Tyringham, 3 Mass. 160; Haselton v. Wease, 8 Vermont, 483; Fulgham v. Lightfoot, 1 Call, 250. White v. Concord Railroad, 10 Foster (N. H.) 188. New Hampshire Mut. Fire Ins. Co. v. Walker, 10 Foster (N. H.) 324. As want of an averment of special demand or notice, Chester Glass Co. v. Dewey, 16 Mass. 94; Colt v. Root, 17 Mass. 94; Colt v. Root, 17 Mass. 229; Kingsley v. Bill, 9 Mass. 198. Crocker v. Gilbert, 9 Cush. 131. Or seizin in a writ of entry. Ward v. Bartholomew, 6 Pick. 409. Or want of particularity or certainty. Richardson. v. Eastman, 12 Mass. 505; Ingersoll v. Jackson, ib. 495; Livermore v Boswell, 4 ib. 437; Coffin v. Coffin, 2 ib. 258; Labiffe v. Hunter, Harper, 184. 93. A verdict will cure an omission to add a joinder to a replication tendering an issue. Morrison v. Hart, Hardin, 150. So an omission of a similiter. Ripley v. Coolidge, Minor, 11; Stone v. Van Carter, 2 Vermont, 115; Babcock ». Huntington, 2 Day, 394. So an omission of the sum paid and the amount of damages laid in the declaration. Robinett v. Morris, Hardin, So a defective statement of the consideration. Hendrick v. Seeley, 6 Conn. 176; Martin v. Blodgett, Aiken, 375. So the failure to allege the performance of a condition precedent. Bailey v. Clay, 4 Rand, 346. So an omission to allege a special demand when such demand is necessary. Bliss v. Arnold, 8 Vermont, 252. So the allegation of a promise before the date of the writ. Bemis v. Faxon, 4 Mass. 263. So a defect in statement of venue in a transitory action. Barlow v. Garrow, Minor, 1. But where no title or ground of action is set out, the declaration will not be aided by verdict. Williams v. Hingham Turnpike, 4 Pick. 341; Needham v. M'Auley, 13 Vermont, 68; Carlisle v. Weston, 1 Metcalf, 26; Griffin v. Pratt, 3 Conn. 513; Phelps v. Sill, 1 Day, 315; Chichester v. Vass, 1 Call, 83. Merrick v. Trustees &c. 8 Gill, 59. So where no consideration is alleged in an action of assumpsit. Hitchcock v. Page, 1 Root, 293. Where the ad damnum is left blank and verdict for plaintiff. Hoit v. Malony, 2 N. Hamp. 223. Where there is no plea or issue entered. kaden, Minor, 73. WHEN AIDED. 2dly. By intend DEFECTS proved at the trial (1). And such intendment must arise, not merely from the verdict, but from the united effect of the verdict and the issue upon which such verdict was given. On the one hand the particular thing which is presumed to have been proved must always be such as can be ment after implied from the allegations on the record, by fair and reasonable intendment (x). And, on the other hand, a verdict for the party in whose favor such intendment is made, is indispensably necessary, for it is in consequence of such verdict, and in order to support it, that the Court is induced to put a liberal construction upon the allegations on the record. verdict. Thus, if to a declaration on a bill of exchange the plea improperly state that there was no consideration, without stating the circumstances with particularity, yet if the plaintiff reply, after verdict the defect in the plea will be aided (y). So, the decision in Humphreys v. Pratt, in House of Lords, turned on the ground that the verdict aided the defect (z). It is obvious that the doctrine now under consideration does not apply to the case of a judgment by default. Such a judgment affords no ground for raising any intendment in favor of the plaintiff; it admits such facts only as are actually alleged (a), and there is no necessity for the plaintiff [*674] proving anything further. Where an intendment is made in favor of a party, it is always a presumption relative to matter of fact, viz. that such a particular circumstance was duly proved at the trial; but it is impossible to raise a presumption of this description, when no trial has taken place. In the case, therefore, of a judgment by default, the Court cannot, upon a motion in arrest of judgment, or writ of error, intend any thing in favor of the plaintiff; the only question they will have to consider is, whether the alleged defect is or is not cured by the effect of any express legislative enactment. And as it appears from the more modern cases that the different statutes of jeofails, (the operation of which was extended to judgments by default by the statute for the amendment of the law) (b), cure such defects only as are now considered matter of form, it follows that any objection to the declaration, made after judgment by default, will be considered precisely in the same manner as if it had arisen upon general demurrer; and that if the defect be matter of form it will be aided, but if matter of substance it will be fatal (c). It is therefore often very material to attend to the distinction between the doctrine of intendment, and the effect of the statute of jeofails, in aiding defects in pleading. The statutes of jeofails operate not by way of intendment, but by positive enactments (d); and as they do not extend to cure defects which are clearly matters of substance, there are necessarily many defects of this nature which may be aided by a verdict, but which are not reached by those statutes, and are constantly still fatal after a judgment by default (e). Having thus explained the general nature of the doctrine of intendment, and shown that it is confined to those cases only in which a verdict has (x) Sce per Lord Ellenborough, 1 M. & Sel. 237; per Buller, J. 1 T. R. 145, 146; Tidd, 8th ed. 919, and cases there cited; sec post, 682, 683. (y) Easton v. Patcher, 4 Tyr. 472. (z) 2 Dow. & Clark, Rep. 288. a) 1 Saund. 228, n. 1. (b) 4 & 5 Ann. c. 16; post, 682, 683. (d) See 1 Saund 5th ed 28 a, note (k). (1) White v. Concord Railroad, 10 Foster (N. H.) 188. New Hampshire Mut. Fire Ins. Co. v. Walker, 10 Foster (N. H.) 324. · WHEN verdict. been given in favor of the party for whom the intendment is required to DEFECTS be made, we shall now proceed to notice some of the cases which have AIDED. arisen upon the subject, in order to show under what particular circum- 2dly. By stances the Court will or will not make an amendment in support of the intendverdict, and what is the nature of the intendment they will make. Before ment after we notice these cases, it may, however, be proper to remark that it is unnecessary at the present day to have recourse to the doctrine of intendment with respect to defects which are not matters of substance; for we have already observed, and shall hereafter see more particularly, that defects which are mere matters of form are aided after verdict by the effect of the statute of jeofails, without there being any necessity to have recourse to the doctrine of intendment (ƒ). The authorities in the books are very numerous on the subject of defects being aided after verdict, but those we shall select to illustrate the doctrine will be chiefly from the modern reports. It is quite unneces- [ *675 ] sary to detail a great number of the older cases on the subject, the great majority of them having arisen upon matters which would now be considered mere form. And it would be a task of some difficulty to reconcile all the decisions upon the subject, partly because the Courts have in later times become much more liberal than they were formerly in discriminating between form and substance, and partly because the distinction we have before adverted to, between the doctrine of intendment at common law and the statute of jeofails, is very often but little attended to in many of the older reports and treatises (g). In an action of assumpsit the declaration stated that the defendant had sold to the plaintiff a quantity of furze then growing upon certain land, to be taken away by the plaintiff before a certain day; and that in consideration thereof the defendant promised that he would permit the plaintiff peaceably to enjoy and take away the furze without disturbance; and then alleged that the defendant did not permit him to enjoy it, but disturbed him from taking a quantity away. After a verdict for the plaintiff, it was Instances objected upon a writ of error that no time was shown when the disturb- (h.) ance took place, and that unless it were shown to be before the stipulated day there could be no good ground of action; but the Court held that after the verdict it would be intended within the given time; for otherwise there could have been no proof of any cause to have damages (i). This case very clearly illustrates the principles we have above laid down; the plaintiff had not expressly made the allegation which was contended to be necessary, but had merely averred that the defendant had committed a breach of his promise by the alleged disturbance: the particular part of the averment in the declaration which related to the disturbance was ambiguous, since it might mean either a disturbance before or a disturbance after the particular day by which the furze was to be taken away; but from the whole declaration it was evident that nothing but proof of a disturbance before the particular day would amount to a breach of the contract set out, so as to entitle the plaintiff to recover; and as in point of fact he had recovered, the Court were in reason and justice bound to presume that (f) Supra; post, 681. (9) See the observations of Mr. Serjeant Williams, 1 Saund. 228 b. e. n. 1. (h) See a further instance in 2 Dow. & Clarke, 295, 296, and cases there quoted. (i) Cro. Jac. 497. It was also held in this case that it was not material to allege the time of the disturbance, for it was collateral to the promise. VOL. I. 87 WHEN AIDED. intend verdict. DEFECTS such proof had been given. So also in an action of assumpsit brought by an off-going tenant against his landlord to recover compensation, accord2dly. By ing to the custom of the country, for tilling, fallowing, and manuring arable land, where the plaintiff, after setting out the custom, averred that he had ment after tilled, fallowed, and manured, and had sown with wheat and seeds certain Instances. lands forming part of Iris farm, but without expressly avering that such [*676] lands were arable, it was held, on motion in arrest *of judgment, after a verdict for the plaintiff, that as the declaration showed that the plaintiff could not be entitled to recover without proving that the lands were arable, it must be intended that he had given such evidence at the trial; and that therefore the defect or ambiguity, if any, in the declaration was helped by the verdict (k). The following cases will also further elucidate this doctrine-In an action of assumpsit against the executors of the maker of a promissory note, the plaintiff after setting out the note, alleged that the testator at the time of his death was indebted to the payee for the amount of the principal sum secured by the note and interest thereon; and then averred that after the payee's death, it was found upon inquest, by the oaths of honest and lawful men, (but without showing how many), that the payee was felo de se, whereby the note and the money due thereon became forfeited to the crown, and the plaintiff then set out a grant to him under the king's sign manual. After a verdict for the plaintiff, it was objected in arrest of judgment, 1st, that a promissory note was only assignable by indorsement, and that though the crown could assign a debt, yet it was not alleged that this was the case of a debt, nor did the plaintiff suc as the assignee of a debt, but only of a promissory note: and, 2dly, that it was not averred in the declaration that the inquisition had been taken by twelve men, which it was contended was necessary. But the Court held that the allegation that the maker, at the time of his death, was indebted to the payee in the principal sum secured by the note and interest thereon, was a sufficient averment that the note was a security for a debt; and also, that supposing it to be necessary that the coroner's inquest should be taken by twelve men to vest chattels in the crown, it must be intended after verdict that the inquisition in question had been so found (1). And where in assumpsit the plaintiff stated in his declaration that he had, at the request of certain persons therein mentioned, sold and delivered to them goods of a certain value, whereof the defendant had notice, and that in consideration thereof, and also in consideration that the plaintiff, at the defendant's request, would forbear and give day of payment of the said sum of money (but without say ing to whom), the defendant promised to pay the same at a particular time, and then averred that the plaintiff did forbear and give day of payment of the said money; after a verdict for the plaintiff, the Court held that by necessary intendment the vendees of the goods must have been the persons to whom the plaintiff forbore; and that, though not specifically alleged, it appeared to be so with a sufficient degree of certainty, but that at all events the defect, if any, was cured by the verdict (m). We have formerly seen, [ *677 ] in treating of the mode in *which contracts should be stated, and the degree of certainty required in pleading (n), that in general uncertainty is only a matter of form, and that it will consequently be aided either on general demurrer or after verdict or judgment by default, by the statutes of jeofails. In a case in which the declaration in assumpsit stated the plaintiff had (k) 1 B. & B. 224; 3 Moore, R. 536, S. C. (m) 1 New Rep. 172. WHEN AIDED. ment after sold to the defendant a certain horse, at and for a certain quantity of cer- DEFECTS lain oil, to be delivered within a certain time, which had elapsed before the commencement of the suit, it was contended that the judgment ought 2dly. By to be arrested, since the plaintiff had professed to declare on a special con- intendtract, but had not specified in any manner what the terms of the contract verdict. were, but it was answered on the other side, that though the objection Instances. might hold on demurrer, yet after a verdict it must be intended that the jury had ascertained those circumstances; and after some hesitation the Court finally decided that after verdict the declaration was sufficient (o). In another case of action in assumpsit, the declaration stated that the plaintiff had retained the defendant (who was not an attorney) to lay out £700 in the purchase of an annuity, and that defendant promised to lay it out securely, that the plaintiff delivered the money to the defendant accordingly, but that the defendant laid it out on a bad and insufficient security. After verdict it was objected on a writ of error, that no consideration appeared in the declaration; that it was not averred that the promise was in consideration of the retainer, nor that the retainer was for reward; but the Court held that it was absolutely necessary under the declaration that the plaintiff should have proved at the trial that he had actually delivered the money to the defendant, and that the latter had engaged to lay it out; that the delivery of the money for this purpose was a sufficient consideration to support the promise, and that although it was not expressly alleged in the declaration that the delivery of the money was in fact the consideration for the promise, the Court would intend after verdict that such was the consideration (p). In all these cases the form of action was assumpsit. We shall proceed to give a few more instances of intendments made after verdict in different forms of action; but whatever may be the form of action, or the particular pleading which is alleged to be defective, the principles which govern the decision of the Court must of course be always the same. In an action of debt, in which the plaintiff sought to recover penalties for money lost in gaming, he alleged in his declaration that he sued as well for himself as for the poor of the parish of St. Paul, Covent Garden but did not afterwards show that the money had been lost in that parish, but merely "at Westminster aforesaid." After a verdict finding that the defendant did owe part of the money to the plaintiff and the poor of the said parish, it was held, on a writ of error that it must have been [*678 ] proved on the trial that the money was lost in the particular parish, or the jury could not have found their verdict, and that consequently the defect was cured; for wheresoever it may be presumed that anything must of necessity have been given in evidence, the want of mentioning it on record will not vitiate it after a verdict (g). So in an action of debt upon a bond given by a bailiff to a sheriff for the due discharge of his of fice in returning warrants, &c. the defendant in his plea craved oyer of the condition, which recited that the bailiff had been appointed for a particular hundred only, and pleaded performance; the plaintiff assigned as a breach, that a particular warrant had been directed to him which had not been duly returned. It was objected in arrest of judgment after a verdict for the plaintiff, that he had not shown that the warrant was to be executed in the particular hundred, and that consequently it did not ap(0) 2 B. & P. 265. (q) 4 Burr. 2020, 2020; and see Sir T. Raym. 487; Hob. 78; Carth. 304. |