Spencer v. Overton, 1 Day 183

The judgment of the Superior Court was reversed. By the Court. The letter was evidence proper to he exhibited in proof, that the plaintiffs had given notice • ■>!' their claim to one of the select men of the Town of Chatham. The principal question on the record is, whether the declaration of the plaintiffs is sufficient in Saw ? And the objection is, that they have omitted to allege notice of their claim, in the present case, the plaintiffs have alleged, with legal precision, the facts, which were material to their relief; and the averment of notice was not essential to the sufficiency of their declaration.

Were it otherwise, the defect of such notice would be cured by v erdict. The rale of law is, that a verdict, will not cure a defective title, but will cure a good title defectively alleged. If, on examination of the record, the title claimed appeared to be defective, no title can be construed to exist; for the construction must: be in conformity to, and in corroboration of, the record. A good title may, however, be intended, presumed, or inferred, — or, in other words, be found apparent upon a record, — from a view or comparison of it, in all its parts.

A decision, that such proof has been made, as the law requires should be made, is often warranted, on an application of the rules of construction to a record. As relative to verdicts, it is the duty of courts to examine, whether that which the plaintiff ought to have made to appear, and has defectively shewn, on one part of the proceedings, is made to appear legally, and in a proper manner, in another part of the proceedings.

In such case, the record, viewed, and legally construed, in all its parts, shews that sufficient is made to appear to evince, that the title of the plaintiff is a good one, and ought to be supported ; though die same may be inaptly, or defectively, set forth in Ids declaration. The allegation, that notice was given, v, itc a compared with the other allegations, iu the declaration, appears to be of minor importance. If the verdict be admitted to be true, the proof of such notice must be inferred ; and such inference, or intendment, can be legally made from the ’’coord under consideration.

Such has been the course of decisions ; and the case of RmhMu v. Axpinali has narrowed the rule, and e, in this re-ncci, a departure hv.r die principles of the common law, as adopted, and heretofore applied, in .this State, To this opinion of the Court, Daggett and Ed-sioko, Asts* dissented, They said, that however the question might be, on a general declaration of indebitatus assumpsit, yet here the plaintiffs had stated their case specially ; and then it is necessary, that every essential requisite to a recovery, appear on the declaration.

No notice is alleged, nor any fact, which is necessarily concomitant with it. The case is, therefore, within the ruler, laid down in Rushton v. Asptnall, and S¡Aeres v. Parker, which ought to be adhered to. Having' met with a manuscript essay on the question agitated in the foregoing case, written by a gentleman in the first rank of the profession, and for several years a member of this Court, I applied to him for permission to present it to the public. Having obtained that permission, X am happy to avail myself of it, in this [xlace.

After verdict of a jury, upon the general issue, judgment may be arrested, in Sumy cases, for insufficiency of the declaration ; but ail defects, which are bad on demurrer, are not causes for the arrest of judgment; because many defects are cured by verdict ofa jury. X.

All immaterial facts omitted, and ail informality in the allegations, such as duplicity, for instance, are cured by verdict, not so much because they are supposed to be supplied by proof; as because it would be unreasonable to suffer a party to avail himself of such defects, after putting a defendant to the expences of a trial to the jury ; and, perhaps, it is more correct to say, that the defendant waives all formal exceptions, by pleading to issue. 2.

Whore material fact3 are stated too generally, imperfectly, or with such ambiguity, that the dedication would be bad on demurrer, these defects are cured by verdict. 3. Where material facts are entirely omitted, if they are necessary concomitants of any material facts alleged in the declaration, so that in finding the facts alleged, the jury must necessarily have found the facts omitted, the defect is cured by the verdict. But the total omission of any material fact, which is in no way connected with any fact alleged, is not aidedby verdict.

The reason, why any material omission is cured by verdict, is, that the fact so omitted is supposed to have been proved to the jury. Then it follows, that when there is an omission of a fact, which could not regularly be proved to the jury, there is.no room to presume they have found proof of it; and, of course, such defect is cot cured.

It is obvious that where facts arc too generally, or imperfectly stated ; yet if they are so stated as to apprize the party of what he has to defend against, and he sees fit to plead the general issue, these facts may be proved. - ...... ; So again, in many cases, facts entirely omitted are so connected with facts alleged, that the facts alleged cannot be proved, without ■proving those omitted. . . , Rut where. material facts are entirely omitted, and are ⅛ no way connected with facts alleged, the opposite party has no opportunity to defend against them, and they could not be proved on trial.

For instance, in assumpsit, when notice to the defendant is necessary to be stated, if notice is stated, but the time and place, when and where given is omitted ; as notice could not be proved without proving the time and place, these are presumed to be proved to the jury :. but let the fact of notice be omitted, and it could not regularly he proved, and, of course, there is no room for presumption.

So again, for the same reason, if the consideration for an express promise is omitted, it is not cured ; and so it is, to every case, where a fact is entirely omitted, which makes a part of the gist of the action.; and I think all the cases (

a) on ihe subject will come wilk'n some of tile rules and distinctions mentioned above. Another substantial reason, why material facts not stated cannot be presumed to have been provt-⅞ is, that the jury are bound to find a verdict, when the) find all the facts stated in the declaration to ⅛ true; and the plaintiff is not obliged to prove any more than he has stated, in order to entitle him,to a verdict, if, indeed, he might be permitted to.

The idea, then, which has been entertained by some respectable lawyers, that after verdict the court will presume facts, not stated, necessary to support legal inferences, appears to be unfounded. That the facts omitted are crnr.ectcd with legal inferences drawn by the jury, is not sufficient ; but, in order that they may he preiu-med to be*found, they must be connected with facts found by them. (

a) Doug. 683. 1 Salk. 364, 2 Salk. 662 1 T. R. 141.