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cumstance without proof of which at the trial it is impossible to support the action, is aided by verdict; and he referred to the cases collected by Mr. Serjeant Williams, in his note (a), to Stennel v. Hogg. In Skinner v. Gunton

(a) 1 Wms. Saund. 228, n. 1. Hall v. Marshall, Cro. Car. 497;

the declaration stated, that defendant had sold plaintiff all the furze growing upon such land, to be taken before Michaelmas 1635, without disturbance, and that defendant had disturbed plaintiff; without saying, "before Michaelmas." After verdict and judgment, it was assigned for error, that the disturbance was not'alleged -to be before Michaelmas. "But all the Court resolved that this is no cause of error; for being after verdict, it is intended that it was within the time, the defendant having pleaded non assumpsit, and the cause of the damage appearing at the trial, otherwise there had been no cause to have damages." Hitchins v. Stevens, Sir Tho. Raym. 487; debt for rent by assignee of reversion without alleging attornment. "And resolved good enough without it, after ́a verdict; for it is apparent, that if the plaintiff had not given the attornment in-evidence, he must have been nonsuited." In the report of this case, in 2 Show. 233, it is said, a rule was taken and agreed by all the Court, that in any case where any thing is omitted in a declaration, though it be matter of substance, if it be such as without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment.

Monnington v. William, 1

Ventr. 109, Avowant made title by grant in indenture of bargain and sale, without stating a consideration in money. Issue on the grant found for the avowant. "The Court held the pleading good after verdict; and it shall be intended that evidence was given of money paid." 1 Levinz, 308, Mannington v. Guillims, S. C.

Alston v. Buscough, Carthew, 304. Debt for the treble value of tithes, without alleging that defendant had made no agreement for the tithes. Held: "that the declaration was ill, for the reason suprà, if it had been upon a demurrer; but that this was helped by the verdict; for if there had been any agreement' proved at the trial,the plaintiff would not have obtained a verdict. Gostwick v. 1 Sid. 423. Debt for rent of the third year, upon a demise from year to year, without averring continuance of possession; aided after verdict.

Anon.,2 Lord Raym.1060, Declaration, that in consideration, plaintiff had promised defendant to buy up all the plums he could and deliver them to him, defendant undertook to pay plaintiff so much per hundred. Averment, that plaintiff bought and tendered to defendant so many plums, which defendant refused to accept. Objected, that plaintiff had not averred that the plums he tendered were all he bought, or could buy; but to that it was answered and resolved, that that was now cured by the verdict; for unless

1827.

CLEMENT

v.

FISHER.

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and others (a), which was an action for a conspiracy, maliciously to procure the plaintiff to be held to bail,

the plaintiff had proved that these were all he bought or, could buy, it would have passed against him for not proving the performance of the condition." Sir J. Holt, 567, S.C.'

* In Wicker v. Norris, in error, the declaration, which was in debt for an amerciament in a court leet, omitted to state that the defendant was a resiant within the manor at the time of the presentment of the offence, or the setting of the amerciament. "We are of opinion it is cured by the verdict; because it must have been proved at the trial, that defendant was an inhabitant at the time of the amerciament, otherwise the amerciament was coram non judice, and therefore void, and consequently the jury could not have found that there was any debt at all."

Clark v. King, 3 T. R. 147. Plea, that A. C., and all those whose estate, &c., have had, and used, and have been accustomed to have, and are, and of right, ought, &c., common of pasture, on, &c.," without alleging an immemorial right:-Held sufficient after verdict; the Court saying, "It states a right of common in all those who have taken that estate; and unless a prescription had been proved, the plaintiff would not have obtained a verdict."

In Mackmurdo v. Smith, 7 T. R. 518, the omission of an averment in a declaration for pirating a pattern for printing calico, "that the day of the first publishing of the pattern was printed at each end of the piece of calico," as required by

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the statute, was held to be aided by verdict,

In Spieres v. Parkin, 1 T. R. 145, Buller, J., states the rule thus:

as

"After verdict, nothing

is to be presumed: but what is expressly stated in the declaration, or what is necessarily implied from those facts which are stated as where a feoffment is pleaded without livery, avlivery is always implied, because it makes a necessary part of a feoffment. I know of no decision against this rule." By "what is necessarily implied," the learned Judge proba bly meant the same with that which, in the former cases, is designated "that without proving which the plaintiff could not have had a verdict;" but in the particular instance put, it appears that the objection could not have been supported upon special demurrer; for in Throckmorton v. Tracy, Plowd. 149, b, it is said, "livery shall not be pleaded where a man makes a lease for life, or a gift in tail or in fee, but shall be intended to be made." So, Co. Litt. 303 b. And see Ward v. Harris, 2 Bos. & Pul. 265; Pippet v. Hearn, 5 B. & A. 634; 1 D. & R. 266.

In cases where the jury find a verdict not warranted by the evidence, and an application for a new trial has either been neg lected to be made, or has been made without success, this rule may occasion hardship. Thus, in Rer v. Episcopum Llandaff 2 Stra. 1005, the Court held, that in quare impedit by the crown,

(a) 1 Saund. 228

the want of an averment that the first suit was terminated,
was held to be cured by verdict. That was a very
strong case, for it is conceivable that the jury may have
found the defendants guilty, without proof of a legal ter-
mination of the first action. In Stennel v. Hogg (b), a
verdict finding a prescriptive right of common, was
held to cure the omission of an averment, that the cattle
were on the land in which the common was claimed,
or that they were levant and couchant on the land to
which the common was appurtenant. In Rex v. Marsden (c)
there was no allegation that the libel itself was
"of and
concerning the prosecutor." Besides which, that was a
criminal proceeding. In Dalby v. Hirst (d), the rule
as to the effect of a verdict in curing omissions, is laid
down very clearly.

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Platt, in reply, again adverted to Rex v. Marsden (c).

Cur. adv. vult.

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Lord TENTERDEN, C. J., now delivered the judgment of the Court. This is an action for a libel. The second count proceeds thus. "And the said plaintiff further saith, that the said defendant, further contriving and intending as aforesaid, heretofore, to wit, on, &c., at, &c., falsely, wickedly, and maliciously did print and publish, and cause and procure to be printed and published, of and

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1827.

CLEMENT

v.

FISHER.

1827.

CLEMENT

V.

FISHER.

concerning the said first mentioned libel, and of and concerning the said verdict, a certain other false, scandalous, malicious, and defamatory libel, containing amongst other things, the false, scandalous, malicious, defamatory, and libellous matter following, that is to say, " without averring that the part of the libel set out was "of and concerning the plaintiff." This form would not have been necessary if there had been any innuendo *in setting out the libel, applying any thing therein mentioned to the plaintiff, or to the former libel, or if upon perusal of the matter set out, it manifestly appeared that the matter applied to the plaintiff. But upon the matter set out, it appears quite impossible for the Court, on reading that matter, to see that the libel is of and concerning the plaintiff. The judgment, therefore, must be reversed, and a venire de novo awarded.

Venire de novo (a).

(a) And see Cook v. Cox, 3 M. & S. 110.

HOWES v. BALL.

7.521451 An agree TROVER, for a stage coach. Plea, not guilty. At the

ment between vendor and

vendee of a chattel, that the former

may resume

if the price be not duly paid, is a

trial before Abbott, C. J., at the London adjourned sittings after last Hilary term (b), the case proved on the part of the plaintiff, was this. The plaintiff was the widow of the possession John Howes, a stage coach proprietor, who purchased the coach in question of the defendant in April, 1826, and used it in his business down to the time of his death, in September, 1826. After his death, the plaintiff had carried on the business, and used the coach, as before. The defendant had done some repairs to the coach, both before and since the death of Howes, for which it did not the defendant, Gurney and Chitty.

personal con

tract, not binding on alienee, or personal representative of vendee.

(b) Counsel for the plaintiff, Scarlett and R. V. Richards; for

appear that he had been paid. In November, 1826, the coach requiring a new set of wheels, they were prepared by the defendant, and the coach was driven to his yard by the plaintiff's servant, for the purpose of having the new wheels put on. The defendant desired the plaintiff's servant to drive the coach up the yard, and to take off the horses, and the wheels should be changed immediately; but upon that being done, he declined putting on the new wheels, and detained the coach, saying, that he would not let it go off his premises any more till it was paid for. There was no proof that the amount of the defendant's claim for repairs done to the coach had been tendered to him, nor of any formal demand of the delivery of the coach; and it was thereupon contended for the defendant that the plaintiff must be nonsuited. The Lord Chief Justice, however, declined directing a nonsuit, and the following defence was then set up. First, an agreement between the plaintiff's deceased husband and the defendant, in the following terms was proved and read.

"London. This agreement between John Howes, coach-proprietor, of the one part, and Thomas Ball, coachmaker, of the other part, sheweth, that I, the said John Howes do hereby agree to give the said Thomas Ball the sum of 1007. for a new stage coach, payment of which to give the said Thomas Ball four bills of 251. each, and further, I, the said John Howes do agree that the said Thomas Ball do have and hold a claim on the said coach until the debt be duly paid." Signed by the parties. Witnessed by " R. Talbot." Dated 25th April, 1826.

It was further proved that four bills of exchange, for 251. each, dated 8th July, 1826, at three, six, nine, and twelve months' date, drawn by the defendant upon and accepted by Mr. Howes, were given to the defendantthat the first which became due 11th October, 1826, was

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1827.

HOWES

v.

BALL

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