any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken, it shall be deemed waived. If the facts stated in the petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in ar rest of judgment, before judgment is entered." The exception for want of such jurisdiction is not named; yet, we should hardly suppose that a court would proceed to render judgment upon a verdict, or proceed at all in the trial of a cause, when the judg ment would necessarily be erroneous, or void, for want of jurisdiction over the subject of the litigation.

§ 437. Aider by the Pleading of the opposite Party.

It is a rule of common-law pleading that an omission to state a material fact, either in the declaration or special plea, may be supplied by the pleading of the opposite party. Chitty calls it "express 3 aider."

Thus, in a suit against a United States marshal for not making the amount of a judgment for custom-house dues, in which he undertook to plead a remission by the secretary of the treasury, it was objected that the requisite facts, as to the authority, etc., were not set out in the plea, but it was held that the supposed defect was supplied by the replication, which admitted that W. H. C., as secretary, etc., did make and issue said warrants of remission, etc. In an old case in Massachusetts, the omission of a necessary averment that the defendants had mills on and below a certain mill-dam was held to be supplied by a plea admitting that they are seized and in possession of certain mills, etc. In this case Parker, J., says: "When the defendant chooses to understand the plaintiff's count to contain all the facts essential to his liability, and, in his plea, sets out and answers those which have been omitted in the count, so that parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material

2 Code Iowa 1873, § 2650.

1 Chit. Pl. 671.

4 U. S. v. Morris, 10 Wheat. 246.

Slack v. Lyon, 9 Pick. 62.

facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy." In a recent Massachusetts case, being an action for a libel, a defect in the statement by the plaintiff of the application of the libelous matter to him was held to be aided by a concession of such application in the plea."

There is nothing technical or artificial in this doctrine of express aider, and it continues to be recognized in Code pleadings. Thus, a petition failed to state, as it should have done, that certain parties were accommodation indorsers of a promissory note, but the answer averred the fact and cured the defect; and an omission in not stating to whom a promissory note was payable is held to be supplied by the answer. So, when the consideration of the contract in suit was not stated in the petition, and the answer set it out, the defect is held to be cured. The answer may set out a contract unknown to the plaintiff, who relied upon other equities, and it is held in Arkansas that the decree may be based upon the answer.10 In Kentucky a failure to allege a mistake in measuring corn is held to be cured by denying that there was a mistake."

§ 438. Intendment after Verdict.

"At common law, when anything is omitted in the declaration, though it be matter of substance, if it be such that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment." 12 Such is the language of the books, and the same language, in substance, is used in some of our statutes." But this language is too broad, for it has always been limited, both in

13

• Whittmore v. Ware, 101 Mass. 352. See Warner v. Locherby, 28 Minn. 28 [8 N. W. 879], and Webb v. Davis, 37 Ark. 551.

7 Erwin v. Shaeffer, 9 Ohio St. 43.

8 White v. Joy, 13 N. Y. 83.

Kercheval v. King, 44 Mo. 401.

10 Pindall v. Trevor, 30 Ark. 249.

11 Worthley v. Hammond, 13 Bush, 510, and see Quald v. Cornwall, Id. 601. 12 Tidd, Pr. *919.

18 See Wag. St. Mo. p. 1036, § 19 (Rev. St. 1879, § 3582).

England and the United States, to cases where the plaintiff had stated his cause of action defectively or inaccurately, and has never been held to apply where there has been a total omission to state some fact essential to the cause of action. The rule, with its limitations, was based upon the presumption that all the necessary facts were proved at the trial, which would be "a fair and reasonable intendment" in the one case, inasmuch as the evidence of a fact would be the same whether its allegation were complete or imperfect; but if its statement had been wholly omitted, it could not be presumed that any evidence had been offered in regard to it. Hence came the other and better known rule, that "a verdict will aid a title defectively set out, but not a defective title—or, in other words, nothing is to be presumed after verdict but what is expressly stated in the declaration, or necessarily implied from the facts which are stated." 14

Thus the allegation of a promise is necessary in assumpsit, yet any language expressing or implying the agreement is held to be good after verdict; 15 and the total omission of an averment of notice of having performed the condition which was the consideration of the promise sought to be enforced, though a defect, does not invalidate the verdict, as it must, under the issue, have been proved.18 The doctrine is stated with the usual clearness in a note to Saunders' Reports, as follows: 17 "When 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 fact so defectively 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 by the common law; or in the phrase often used upon the occasion, such defect is not any jeofail after verdict." As, when in debt for rent by a bargainee of the reversion, the declaration omitted to allege

14 Tidd Pr. *919, and the numerous cases cited in the English and Amer ican notes where the rule is applied.

15 Avery v. Tyringham, 3 Mass. 160; Kingsley v. Bill, 9 Mass. 198, note b. 16 Colt v. Root, 17 Mass. 229; Crocker v. Gilbert, 9 Cush. 131.

171 Saund. Rep. 228, note 1.

the attornment of the tenant, which was necessary to complete the title of the plaintiff before the statute of 4 Anne, chapter 16, section 9; or, when a grant is pleaded of any interest which at common law lay in grant, and could only be made by deed, it is not alleged to be made by deed; or, when the promise sued on depends upon the prior performance of something by the promisee, and there is no averment of such prior performance; or, in an action for malicious prosecution, there is no allegation that the prosecution is at an end; in all these instances, and some others which are given as illustrations, the defects are held to be cured by verdict, although they would have been fatal on demurrer or on default.

Chitty 18 criticises one or two of these instances, as the presumption, in an action for malicious prosecution, that there was proof that the prosecution was at an end; for though the fact might be inferred from the verdict alone, yet it does not conform to another rule, that though the matter be not stated in terms, the pleading should contain terms sufficiently general to comprehend it in fair and reasonable intendment. After having given numerous instances where a verdict has aided a defective statement of title, the author goes on to give a few where it has been held not to assist a defective title or cause of action made defective by a total omission of a fact material to it, for, in such case, there is no room for presumption that such fact was proved-as, in an action upon a bill of exchange, when demand and notice is necessary, the omis sion to aver presentment and refusal to pay, or that the defendant had notice of the non-payment; or, in an action for a libel or a slander, when the words were not in themselves actionable, an omission of averments rendering them so, or connecting the plaintiff with them; or, charging the words as "in substance," or "to the tenor following," instead of in haec verba; or, an action by a reversioner for an injury to the premises, without showing how the reversion, as well as the premises, was injured. In these and similar instances there was something more than a defective statement, and judgment was arrested.19

18 1 Chit. Pl. 680. (674)

19 1 Chit. Pl. 681, 682.

§ 439. Continued.

When it is said that the total omission to state a fact which is material to the plaintiff's right or the defendant's liability, is not cured by a verdict, a distinction should be taken between the omission of a fact collateral to the leading substantive facts, and one connected with and giving effect, as it were, to such principal fact, and which, to save the verdict, is said to be implied. On demurrer the latter omission might, in some cases, be fatal, though generally it would only subject the pleader to a motion to make his statement more certain; but if the parties go to trial as though it were stated, and it be of such a nature that its proof must be presumed or the verdict would not have been given, the judgment will not be arrested. This seems to contradict the rule that the allegata and probata must correspond, but it is not treated as a total omission of the main averment, but rather a want of completeness in the statement, or a neglect to state some circumstance or some fact connected with-a part of, as it were-or one giving effect to the main fact—an imperfection rather than a total omis sion.

Thus, in addition to the instances given in the last section, in an action by the assignee of a promissory note payable to the payee or bearer, the plaintiff failed to allege the time of the transfer, although it was material to the right of defense. It should have been shown to have been transferred before due, yet the omission was cured by verdict.20 And where one was sued alone upon a joint contract, without alleging that his co-obligor was dead, it was presumed, after verdict, that the fact of his death was proved or the sole liability would not have been found.21 The books abound in instances, both of informal statements and of omissions, which are cured by verdict upon the assumption that the material facts have been proved, but enough have been given to show the nature and limitations of the rule.

The plaintiff can gain nothing, nor will the defendant lose anything, in consequence of the imperfect pleading. If all the ma

20 Bond v. Central Bank of Georgia, 2 Ga. 92.

21 Merrick v. Trustees of Bank of Metropolis, 8 Gill, 59.