1 Sumn. 319 | U.S. Circuit Court for the District of Maine | 1833
We are of opinion, that the motion in arrest of judgment ought to be overruled. We accede to the doctrine stated at the bar, that a defective title cannot after verdict support a judgment; and therefore it constitutes a good ground for arresting the judgment. But the present is not such a case; but is merely the case of a good title defectively set forth. The defect, complained of, is the omission to state, that the assignments, on which the plaintiff’s title is founded, were duly recorded the office of the department of state, which is made essential to pass the title of the original pat-entee by the fourth section of the patent act of the 21st of February, 1703, c. 55 [1 Stat. 318]. The general principle of law is, that, where a matter is so essentially necessary to be proved, to establish the plaintiff’s right to recovery, that the jury could not be presumed to have'found a verdict for him, unless it had been proved at the trial, there the omission to state that matter in express terms in the declaration is cured by the ver-diet, if the general terms of the declaration are otherwise sufficient to comprehend it. This was the doctrine of Lord Ellenborough in Jackson v. Pesked, 1 Maule & S. 234; and it is very elaborately expounded by Mr. Sergeant Williams in his learned note to 1 Saund. 228a. The other authorities cited on behalf of the plaintiff are to the same effect. Now, it seems to us, that taking the whole declaration together, (however inartificially drawn,) the plaintiff sets up a title to the patent right by assignment, and an enjoyment and use of the right under that title, and that he has been injured in that right under that title, by the piracy of the defendant This cannot be true, nor could a verdict for the plaintiff have been found by the jury, if the deeds of assignment had not been duly recorded; for, unless that was done, nothing would pass by the deeds. The cases of Hitchin v. Stevens, 2 Show. 233, and Mackmurdo v. Smith, 7 Term R. 538, cited at the bar, seem to us very strongly in point. So is France v. Tringer, Cro. Jac. 44. There are stronger analogous cases in equity; for it has been held, that if a feoffment is stated without any averment of livery of seisin, or a bargain and sale without stating an enrolment, it is not a good cause of demurrer, but the court will intend it perfect. Harrison v. Hogg, 2 Ves. Jr. 323, 328. As to livery of seisin, it is far from being certain, that, if a feoffment is in terms pleaded, it is necessary, even at law, to aver it. since it is implied. See Co. Litt. 303b; Throckmerton v. Tracy, Plow. 145. See Spieres v. Parker, 1 Term R. 345, per Buller, J.; 1 Saund. 228a, Williams’ note. Upon the whole, judgment must be entered for the plaintiff according to the verdict Judgment accordingly.
