Corcoran v. Dougherty

6 F. Cas. 543, 4 D.C. 205, 4 Cranch 205

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1832
• Status: Published

Opinion

The Court

(nem. con.) permitted the evidence thus offered by the plaintiff’s counsel, to be given to the jury. Verdict for the plaintiff, $405.71.

Mr. Coxe and Mr. Key, for the defendant, moved for a new trial, 1. Because the verdict is against evidence. 2. Because it is a verdict without evidence.

They also moved in arrest of judgment,

1. Because the declaration is insufficient.

2. Because the two last counts are insufficient.

3. Because the verdict is general, and one of the counts is insufficient.

They objected to the third count because it does not aver that the plaintiff had guarantied to the defendant the occupation of the store. Worsley v. Wood, 6 T. R. 719 ; 1 Chitty, 313.

Mr. Marbury, contra:, contended, that the promise of the plaintiff respecting the store, ivas an independent agreement subsequently to be performed ; but if it is not, the want of the averment of it in the declaration is cured by the verdict. Upon the first point he cited Bennett v. Pixley, 7 Johns. 250; Campbell v. Jones, 6 T. R. 570; Humble v. Bland, Id. 257; Walker v. Harris, 1 Anstr. 245; Jones v. Barkley, Doug. 690; and Turner v. Goodwin, 10 Mod. 190.

And upon the second point, namely, that the omission was cured by the verdict. Collins v. Gibbs, 2 Burr. 900; Sellon, Pr. 499 ; 1 Chitty on Pl. 319; Worsley v. Wood, 6 T. R. 715; 2 Saund. 228, note b; Rawson v. Johnson, 1 East, 203, 209.

The Court overruled both motions; being of opinion that the verdict was not against nor without evidence; and that the declaration was cured by the verdict. Cranch, C. J., doubting as to this point.