Carlisle & wife v. Weston , 42 Mass. 26 ( 1840 )

Shaw, C. J.

The declaration is fatally defective in not stating the plaintiffs’ title, and judgment must be arrested. The court have no means of knowing, from the minutes of the judge who tried the case, or otherwise, that the plaintiffs’ property in the goods was proved; and not being stated in the declaration,. it is not to be presumed. It is not the case of a title defectively stated, which may be cured by a verdict; but the plaintiffs have stated no title. No judgment can be rendered on the declaration as it stands ; but the plaintiffs may, upon paying the costs which have accrued since the case went to the jury, have a new trial.

Whether, if the court had judicial knowledge that the property was proved to have been the plaintiffs’, they might grant leave to amend, and enter judgment on the verdict, as upon the amended declaration, is a point that need not be decided at this time.