78 A. 122 | N.H. | 1910
The defendant advances three grounds for her motion in arrest of judgment. The first claim is that the declaration is fatally defective in that it does not allege the plaintiff's freedom from contributory negligence. Such allegation is not needed. Smith v. Railroad,
It is next urged that the declaration is so indefinite that it cannot be ascertained whether the plaintiff seeks to recover under section 9, chapter 118, of the Public Statutes, or under section 14, chapter 60, of the laws 1891. The last mentioned statute provides for recovery in an "action of tort," and so the plaintiff has declared. While it is true that there was no such action at common law, it is provided for by the codes and statutes of many states. It was competant for the legislature to so name the action for this particular wrong. Orne v. Roberts,
Lastly, it is argued that the double damages provided for by the act cannot be recovered because not in terms declared for. This part of the statute is of course merely the rule of damage in the particular case. It involves no question of fact, but relates solely to the ministerial act of applying the statute to the facts found. Jaquith v. Benoit,
Exception overruled.
All concurred.