Ballard v. Fitch

Supreme Court of Pennsylvania

Ballard v. Fitch

3 Grant 268, 1859 Pa. LEXIS 317

DecidedMay 6, 1859

StatusPublished

This text of 3 Grant 268 (Ballard v. Fitch) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ballard v. Fitch, 3 Grant 268, 1859 Pa. LEXIS 317 (Pa. 1859).

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Opinion

The opinion of the court was delivered

by Woodward, J.

When*a party, instead of demurring to a de-. fective declaration, pleads to issue, and takes his.chance of a trial on the merits, the inclination of the court, in modern times, is very strong to sustain the verdict against mere technical objections. 4 W. & S. 473; 9 Barr, 189; 2 H. 513; 12 H. 404.

After verdict the court was asked to arrest the judgment on the ground that no consideration was laid in the narr. for the defendant’s promise. They refused, very properly, to do so. The defendant’s promise was laid to be in consideration that she, the plaintiff, would move out of a certain house and give possession thereof to the defendant — “and the said plaintiff avers that she did remove out of said house and deliver said house and premises to said defendant, and that the use of the same were worth three dollars per week, and more.”

But, says the plaintiff in error, the narr. does not aver that she agreed to move out, nor that she gave up the possession after Ballard made the promise, nor in consideration thereof.

This is too sharp after, verdict. Doubtless the consideration suggested was proved or we should have heard from other parts of the record, and, though it might have been more precisely laid, nothing but a demurrer could make the lack of precision fatal.

The judgment is affirmed, .

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The opinion of the court was delivered

by Woodward, J.

When*a party, instead of demurring to a de-. fective declaration, pleads to issue, and takes his.chance of a trial on the merits, the inclination of the court, in modern times, is very strong to sustain the verdict against mere technical objections. 4 W. & S. 473; 9 Barr, 189; 2 H. 513; 12 H. 404.

After verdict the court was asked to arrest the judgment on the ground that no consideration was laid in the narr. for the defendant’s promise. They refused, very properly, to do so. The defendant’s promise was laid to be in consideration that she, the plaintiff, would move out of a certain house and give possession thereof to the defendant — “and the said plaintiff avers that she did remove out of said house and deliver said house and premises to said defendant, and that the use of the same were worth three dollars per week, and more.”

But, says the plaintiff in error, the narr. does not aver that she agreed to move out, nor that she gave up the possession after Ballard made the promise, nor in consideration thereof.

This is too sharp after, verdict. Doubtless the consideration suggested was proved or we should have heard from other parts of the record, and, though it might have been more precisely laid, nothing but a demurrer could make the lack of precision fatal.

The judgment is affirmed, .

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Bluebook (online)

3 Grant 268, 1859 Pa. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballard-v-fitch-pa-1859.