Warren v. Inhabitants of Litchfield
7 Me. 63
| Me. | 1830

The opinion of the Court was read in the following term as drawn up by

Mellen C. J.

We will first consider tire motion in arrest of judgment!

It is well observed in the case of Bayard v. Malcolm & al. 2 Johns. 550, that “ it has been repeatedly decided that, after verdict, the court will do what it can to help a declaration ; that the court will suppose every thing right, unless the contrary appears on the record ; and the general scope pf the authorities is, that, after verdict, every legal intendment is to be admitted in its support.” See also, 1 Salk. 29 ; 3 Burr. 1725 ; 1 Wils. 255 ; 1 Saund. 128. There are numerous cases in which the question has been examined, what.imperfections or omissions in a declaration are cured by verdict, and it is a vain attempt to reconcile them. There is, at the present day, less strictness than there formerly was, and an increasing disposition in courts to support a declaration, after verdict, by legal intendment. In the case of Little v. Thompson, cited by the defendant’s counsel, we had occasion to examine several of the authorities on the subject. There a severe penalty was demanded in an action of debt; but the declaration .omitted an essential averment, namely, that the defendant took and carried away the logs, and disposed of them, without the consent of Little the plaintiff. The case was not brought within the statute on which the action was founded. No title was set forth that would sustain an action of debt; and, according to the general principle of law, a verdict could not cure such a material defect. In such a case, the court, on a motion in arrest of judgment, would not presume the defendant guilty of an offence or wrong, not charged. In Pangburn v. Ramsay, 11 Johns. 141. Spencer J., in delivering the opinion of the court, says, “ Where there is a defect, imperfection or omission, yet if the issue joined *67be such as necessarily required, on trial, proof of the facts defectively or imperfectly slated or omitted, and without which it is not to be presumed that either the judge would direct or the jury would have given the verdict, such defect, imperfection or omission is cured by the common law.” The principle here laid down goes much further in favor of sustaining a declaration, than any of the cases cited in Little v. Thompson in the opinion delivered. So also in Ward v. Bartholomew, cited by the counsel for the plaintiff, where the demandant had omitted to allege his seisin of the demanded premises, and the jury found that the, tenant had disseised him, the court declined arresting the judgment, on the ground that the jury could not have found that the tenant disseised the demandant, unless he was seised. These cases show how much the court will intend in favor of a declaration, after verdict, for the purpose of sustaining it. It is a well settled principle of the common law that where the declaration contains two or more counts, one of which is bad, and a general verdict for damages is given, the judgment must be arrested ; though in this State, the abovementioned principle is done away by the third section of the statute of J 830, eh. 463. In the case before us, however, the declaration contains but one count; still it is contended that in that count the plaintiff demands damages for the loss of his horse and an injury done to the chaise in which he was harnessed, at the time he was precipitated from the bridge ; and yet there is no averment in the declaration that ho owned the chaise or the harness. This is true. And for this reason it is contended that judgment cannot be legally rendered on the verdict; as the damages must be intended as given, as well for the injury done to the chaise as for the loss of the horse. The first inquiry is whether the principle contended for is applicable to a declaration containing only one count, describing several articles of property, to some of which no title is set forth. The case of Joce v. Mills, 2 Salk. 640, seems to support the above position, and we do not perceive that the case of Pinkney vs. Inhabitants of East Hundred, 3 Saund. 379 is opposed to it. That was decided on demurrer ; and there can be no question that where there is a demurrer to the whole declaration, the plaintiff ought to have judgment for that which is *68well laid and be barred for the residue; and in such a case the damages will be assessed according to the right as alleged and established. It will be more useful carefully to examine the declaration, and see what its averments are, and what the plaintiff’s claims are. The language employed in relation to the horse clearly amounts to an allegation of the plaintiff’s ownership; but there is no averment that he owned either the chaise or harness. The averment is, “ by reason whereof the said plaintiff’s horse, harnessed in a chaise, and under the care of a careful driver, &c. &c. with said chaise and harness, was drowned, and the said chaise greatly injured and die life of the driver greatly endangered.” The value of the horse is alleged to have been ‡75 ; and the injury to the chaise to have been equal to $15. The verdict was returned for ‡72 50. The concluding averment is that an action hadi accrued to die plaintiff to recover the amount of damages by him sustained as aforesaid. And now from all these averments and facts, appearing on the record, what is the legal intendment, admissible in support of the verdict ? The plaintiff contends that die chaise is named in the declaration, merely as descriptive of the manner in which his horse was travel-ling at the time of the disaster j and that the injury done to the chaise, and the danger to the life of die driver are mentioned as descriptive of the consequences of the defendant’s neglect in regard to the bridge; and not as a ground of claim of damages for either of those consequences. The language will admit of this construction. The horse is called “the plaintiff’s horse” — the chaise is merely called “ a chaise.” If this mode of reasoning may be called very ingenious, still we do not perceive that there is any fallacy in it $ and when we consider that the alleged value of the horse was ‡75, and that the verdict is less than that sum ; and when we consider also that the plaintiff in the declaration asserts an ownership of the horse, but not of the chaise or the harness, there is reason for supposing that the damages were assessed for the loss of the horse, being his estimated value, without any reference to the injury done to the chaise, or the danger to which the life of. the driver was exposed ;' for neither of which had the plaintiff any legal right to recover damages. We may here properly use the language, before *69quoted from the case of Bayard v. Malcolm, & al. viz : “ the court will suppose every thing right, unless the contrary appears on the record.” The court will suppose that the sum expressed in the verdict was to compensate the plaintiff for the damages by him sustained, and for no other purpose. For these reasons the exception to the decision of the court of Common Pleas, overruling the motion in arrest of judgment, is not sustained.

We think it proper here to subjoin that we have serious doubts-whether the merits of the motion in arrest of judgment are regularly before us on the exception alleged to the opinion of the court below,, overruling that motion •, the facts on which the motion was predicated appear on the record. The 5th section of Stat. 1822, ch. 193, has evidently a reference to those cases where the question to be reserved depends on facts which do not appear on record; and therefore they are to be summarily stated in an exception signed by the party excepting, and certified by the judge to be conformable to the truth of the case — a certificate perfectly useless and unmeaning whore all the facts are on the record, as in this case. But as the question had been fully argued and was in fact before us, we concluded to decide it, as the court did in Drowne v. Slimpson, 2 Mass. 441, where the record was removed by writ of error instead of certiorari.

As to the exception to the instructions given to the jury, the facts; arc few and simple. The report states that the plaintiif’s servant had not any notice or knowledge, or any reason to suppose, that the bridge was unsafe or dangerous, excepting that about thirteen days before the horse was drowned the driver was informed that the bridge would not be finished under four or five weeks, and that it was not considered safe to pass ; but by whom it was so considered it did not appear. All the facts tending to prove want of duo care on the part of the driver were properly submitted to the jury, and with guarded instructions for their regulation. We perceive no incorrectness in them. This exception is also overruled, and there must be

Judgment for the plaintiff.