Grover v. Gould & Frink

20 Wend. 227

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

This being an action brought before an inferior court, there can be no doubt of the rule, that in all such cases it is necessary that every part of that which constitutes the gist and substance, in other words, the cause of the action, should appear upon the record to be within the jurisdiction of the court 5 therefore, as it is said, the consideration as well as the promise itself, must be laid in the declaration to be within the jurisdiction of the court, and the omission is error even after verdict. Stanman v. Davis, 1 Salk. 404, and note. 2 Ld. Raym. 795, 8. C. 2 Wilson, 16. 1 T. R. 151. Peacock v. Bell & Kendall, 1 Saund. 74, and note (1)

Here the plaintiffs have averred that the defendant on the 1st December, &c. at the first ward in the city of Rochester, &c. and within the jurisdiction of this court, was indebted to the plaintiff, &c. for divers goods, wares and merchandizes by the said plaintiff before that time sold and delivered to the said defendant, &c., and that he then and there promised, esc. I admit that the sale and delivery of the goods constitute the gist of the action, the promise arising by operation of law 5 and yet, notwithstanding the literal strictness of some of the cases which has been a subject of regret, I cannot but think that it appears with reasonable certainty that the sale and delivery took place within the jurisdiction of the court. The declaration would probably have been bad on special demurrer, but after verdict, it should be deemed sufficiently explicit: the place to be regarded as relating to the sale and delivery as well as tg the indebtedness. It is neither a violation of grammar nor of sound construction of the language in the connexion used, so to understand it. An ambiguous expression in a declaration is cured by verdict, and must afterwards be taken to have been used in that sense which will sustain' the verdict. 1 Barn. & Cres. 296. Our statute of amendments is somewhat broader than the English, and many technicalities necessarily regarded in England are here to be overlooked; though I admit, that if we were bound to construe the declaration, as having omitted altogether the averment of jurisdiction, the defect would not be cured by the verdict. But the statute affords very strong evidence of the liberal spirit with which pleadings are to be regarded by the courts after trial.

Judgment affirmed.