2 Mass. 50 | Mass. | 1806
I am against arresting the judgment in this case, however my opinion might have been on a special demurrer and ‘cinder, where the parties are properly brought to a conflict on points of nicety.
I understand it to have been uniformly endeavored by courts to support declarations after verdict, if the words therein contain sufficient for that purpose. And indeed, where there may be some question on the literal sense of the words, the courts will give them such a reasonable construction (if they are capable of it) as will support the action after verdict.
The objection here is, that the assault and battery alleged in the declaration is laid with a continuando; which the objectors say
“ There afterwards ” also may have its use in the sentence, without supposing that another time was intended to be expressed by it, It most probably was intended to show that the beating with a rope, though a part of the same outrage as the beating with a plank, was subsequent to it in order of time.
Upon these considerations, it being possible lo exclude the idea of a continuando from the declaration, without doing violence to any part of it, and a conslruction favorable to the verdict being to be gathered from the declaration itself, upon a reasonable use of the words, I am of opinion that the motion in arrest of judgment ought not to prevail.
I doubt whether this objection would have been held good, even in the ancient times of extreme technical nicety, and although attempted on a special demurrer. Here, however, the defendant saw the declaration before he pleaded to it, and went to trial. If he would avail himself of this point, he ought to have done it at an earlier stage of the cause. But I apprehend the declaration to be good and sufficient, and am therefore against arresting ‘ the judgment.
There is no doubt that the principle of law is settled, that where there are several counts in a declaration, and one of them is materially defective or bad, and a general verdict is found ■upon them all, the judgment must be arrested. The question now to be determined is — Does this rule apply in the present case?
The third count in the declaration, which gives rise to the present question, after stating the assault by the defendant, and the manner of confining the plaintiff for the purpose of beating him, alleges that he did beat him with a plank, and it then goes on in these words : “ And there afterwards the said Benjamin, continuing
I agree in opinion with my brethren. Unless this declaration can be shown to allege the trespass with a continuando in form, there is no ground for arresting the judgment. An action is said to be laid with a continuando when the injury is alleged to have been committed by continuation from one day to another, or at divers days' and times between such a day and such a day. It does not appear that the trespass in this case is so alleged as to be brought within the legal and technical import of a continuando. “ There afterwards continuing his said assault ” may be understood to imply nothing more than a continuance of the trespass, without intermission of time longer than was sufficient to change the instruments used; first beating the plaintiff with the plank, and after-wards with the rope ; he continuing, the whole time of the [ * 55 ] beating with * both the instruments, lashed over the cask; so that there never was a cessation of the first assault noi
■Judgment according to verdict
Kingsley vs. Bill, 9 Mass. Rep. 198. — Stevenson vs. Hayden, post, 406. — Barnard vs. Whiting & Al. 7 Mass. Rep. 358. — Nye vs. Otis, 8 Mass. Rep. 122. — Bames vs Hurd, 11 Mass. Rep. 59. — Sullivan vs. Holker, 15 Mass. Rep. 374.
1 Saund. 24.
Fontleroy vs. Aylmer, 1 Ld. Raym. 240
Mitchel vs. Neale, Cowp. 828. — English vs. Purser, 6 East, 395. — M'Fadden vs. Olivant, 6 East, 390. — Burgess vs. Freelove, 2 Bos. & Pul. 425. — 1 Chitty, 439, 5th Lond. ed.