Flanders v. Stewartstown , 47 N.H. 549 ( 1867 )

Sargent, J.

The description of defendant town is manifestly defective. But this defect might have been cured by amendment. Foster v. Lane, 30 N. H. 305 ; Lebanon v. Griffin, 45 N. H. 558, and cases cited. Ordinarily any defect that might be cured by amendment will not be a sufficient ground for arresting the judgment. 3 Black. Com. 394. And even where there is such a defect in pleading as would have been fatal upon demurrer, yet if the issue joined be such as necessarily required on the trial, proof of the facts, so defectively or imperfectly stated or omitted, such defect, imperfection or omission, is cured by the verdict. 1 Saund. 226, note 1, p. 228. So, if the plaintiff has stated the gist of his action properly, a verdict cures everything which was necessary for the plaintiff to prove in order to maintain his action. Avery v. Hoole, Cowp. 826 ; Bayard v. Malcomb, 2 Johns. 550 ; Pangborn v. Ramsey, 11 Johns. 141; Fuller v. Holden, 4 Mass. 498; Moore v. Buswell, 5 Mass. 306; Kingsley v. Bell, 9 Mass. 198 ; Colt v. Root, 17 Mass. 235 ; Ward v. Bartholomew, 6 Pick. 409 ; 1 Ch. PL 673, and seq.; Warren v. Litchfield, 7 Green. 63. If enough appears from the declaration to show that the plaintiff has a good cause of action, all defects in the statement of it will be cured by verdict. Sewall's Falls Bridge v. Fisk, 23 N. H. 180 ; White v. Concord Railroad, 30 N. H. 188 ; Corey v. Bath, 35 N. H. 530.

In Corey v. Bath, last cited, the form of the declaration is precisely like the present one, in this particular, and though no objection was made in that case for that reason, the imperfect and defective statement of the liability in the declaration is evidently regarded as cured by the verdict. We must presume, after the verdict, that everything was proved, which was necessary to warrant the finding of the jury. Worcester v. Pro. of Canal Bridge, 16 Pick. 549 ; Reed v. Chelmsford, 16 Pick. 128.

The error or defect in this case would have been amendable upon demurrer, and must now be held to be cured by the verdict. Walpole v. Marlow, 2 N. H. 386 ; Elliot v. Heath, 6 N. H. 428 ; Hall v. Marshall, Croke Car. 497 ; Ingersoll v. Jackson, 9 Mass. 495 ; Adding-ton v. Allen, 11 Wend. 375 ; Morey v. Homan, 10 Vt. 565 ; Smith, v. Eastern Railroad, 35 N. H. 356; Rev. Stats, ch. 186, sec. 10.

A quaere might be raised whether the statement in the declaration, that there was in the town of Stewartstown, on, &c., "a certain public highway,” would, not be sufficient, and whether it would not follow, as a necessary legal sequence from that fact, that said town was in law bound to keep the said highway in repair.

The motion in arrest must be overruled, and there must be

Judgment on the verdict.