John Harding vs. James Cragie, 8 Vt. 501

The opinion of the court was delivered by r Coljúamer, J. „ .... The first question in this case arises on the admission of the testimony of Lamb. It seems no dispute existed ¡n elation to the signature of Lamb, nor any that Lamb and Reed were the persons for whose benefit the note was given to Hunt. It therefore appears, that Lamb was equally bound to indemnify both the plaintiff and defendant, and his interest seems, therefore, to have been balanced. As to the subject matter of his testimony, it was to dispense with calling the subscribing witness.

It is undoubtedly true, that when the fact proposed to be shown, is a fact to which the subscribing witness was called to attest at the time, such as the signature or delivery of the paper, in such case the subscribing witness was must be first called. In this case it seems there were three signers, and but one] subscribing witness.

To prove that signatures were added to this paper subsequent to that of the subscribing witness, is not contradicting the above rule, nol-is it inconsistent with the_ face of the paper, but mere matter .of .explanation, ' The next question relates to the admission of the evidence that the plaintiff signed the note to Hunt at the defendant’s request, (for such was its legal effect,) when the declaration contained no such averment. On the correctness of this, it is unnecessary to pass.

The plaintiff had proved the first count in his declaration without this evidence, and was therefore entitled to a verdict, which was all he obtained. The evidence did not cure a defective declaration, and therefore, it produced no injury to the plaintiff of which he can complain. 'When there are several counts and a general verdict is returned, if one of the counts is substantially defective, judgment must be arrested, for the court cannot say, but the jury may have assessed damages on that count.

A motion in arrest for the insufficiency of the declaration is to be tried by inspection of the declaration onlyj no resort can be had to a history of what was shown on trial, to supply any defect in the pleadings. The first count alleges the contract in substance thus ; that in consideration the plaintiff had signed a note for certain third persons, the defendant promised to indemnify him.

The only consideration here alleged is past and executed, and in such case, it is always necessary both to allege and therefore, prove that this was at the request of the defendant, or it must appear, by the declaration, that the defendant derived benefit from the consideration ; neither of which are in this count. —-1 Saund. R. 164, note. The final inquiry is, was this defect cured by verdict ?

The most ancient rule on this subject, while suits related almost entirely to real estate, was this: A title defectively set out, in pleading, is cured by verdict; but a defective title, that is, a title which upon the pleading was clearly bad, was not cured. This rule is of but little use in application to personal actions. The next rule, by which the courts seemed for a time governed, ’was this : After verdict, every thing is presumed to have been proved which a court would have required to be shown to entitle the plaintiil to recover. — Crouther vs. Oldfield, 2 Ld. Ray. 1225. — Rushton vs.

Aspinwall, 2 Doug. 684. This rule, taken unqualified, would cure every possible defect. But taken in a more limited sense, what will a court require to be proved, and what will they, after verdict, presume to have been proved ? The obvious answer would be precisely what is alleged and in issue, and no more. In Spiers vs. Parker, (1 T. R. 145,) it was holden that nothing will be presumed to have been proved but what is alleged or necessarily implied from what is alleged. As when feofment is alleged, livery is implied; or where a trespass or any other act is alleged, a time is implied.

This rule has been -recognized in this court.— Vadakin vs. Soper, 1 Aik. R. 289. This count shows a mere nudum papium. This does not imply that a legal consideration was shown. There is nothing implying that the plaintiff was ever requested by the defendant to sign the note, or that it was for his benefit. Judgment reversed.