Low v. Tilton

Superior Court of New Hampshire

Low v. Tilton

19 N.H. 271

DecidedDecember 15, 1848

StatusPublished

This text of 19 N.H. 271 (Low v. Tilton) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Low v. Tilton, 19 N.H. 271 (N.H. Super. Ct. 1848).

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Opinion

Wilcox, J.

The declaration, in this case, would have been insufficient upon demurrer, for its allegations in no way connect the defendant with the default of the deputy sheriff, Dudley Smith. It fails in its vital requisite, the setting forth the nature and extent of the claim upon the defendant; and in order to show any claim, the evidence must.be much more extensive than the allegations. Every fact that the declaration sets forth might be true, and still the defendant be under no legal responsibility arising from them, because, although Smith, the deputy of the sheriff of Belknap county, is alleged to be in fault, the defendant is not alleged to be that sheriff, nor is he described as such. It is well settled that where the liability of the defendant arises from some particular character or capacity, that must be stated. 1 Chitty's Pl. 418, 419.

But it is contended that the defect in the declaration is cured by the verdict.

There may be defects in a declaration, which, though proper ground for demurrer, would be aided by verdict; but those are cases where there is a general allegation which embraces the right of the plaintiff, or the liability of the defendant, though insufficient in certainty and particularity, and where, a verdict having been based upon it, it is necessarily to be presumed that the particular facts requisite for the verdict have been found. But when any particular fact is essential to the validity of the plaintiff’s title, if such fact be neither expressly alleged nor necessarily to be implied from those which are stated, the verdict cannot aid such de[273]*273ficiency. Max v. Roberts, 12 East 89; King v. Everett, 8 B. & C. 114; 1 Saund. 228, note 1; Walpole v. Marlow, 2 N. H. Rep. 385.

It is contended, in the present case, that the defect in the declaration has been cured by the verdict, because it is not to be supposed that a jury would give a verdict, or the court suffer one to be given, without proof of the defendant’s liability, in some form, for the default of Smith. The principle has never been, and cannot be extended to permit any such vague and indefinite sort of pleading. If such presumption be sound, why would it not dispense with the necessity for any declaration whatever, as well as of so essential a part ? It is not even alleged generally that the defendant is answerable or liable for Smith, if that form of allegation would be sufficient after verdict.

Judgment arrested. Leave granted to move to amend in the court of common pleas.

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Wilcox, J.

The declaration, in this case, would have been insufficient upon demurrer, for its allegations in no way connect the defendant with the default of the deputy sheriff, Dudley Smith. It fails in its vital requisite, the setting forth the nature and extent of the claim upon the defendant; and in order to show any claim, the evidence must.be much more extensive than the allegations. Every fact that the declaration sets forth might be true, and still the defendant be under no legal responsibility arising from them, because, although Smith, the deputy of the sheriff of Belknap county, is alleged to be in fault, the defendant is not alleged to be that sheriff, nor is he described as such. It is well settled that where the liability of the defendant arises from some particular character or capacity, that must be stated. 1 Chitty's Pl. 418, 419.

But it is contended that the defect in the declaration is cured by the verdict.

There may be defects in a declaration, which, though proper ground for demurrer, would be aided by verdict; but those are cases where there is a general allegation which embraces the right of the plaintiff, or the liability of the defendant, though insufficient in certainty and particularity, and where, a verdict having been based upon it, it is necessarily to be presumed that the particular facts requisite for the verdict have been found. But when any particular fact is essential to the validity of the plaintiff’s title, if such fact be neither expressly alleged nor necessarily to be implied from those which are stated, the verdict cannot aid such de[273]*273ficiency. Max v. Roberts, 12 East 89; King v. Everett, 8 B. & C. 114; 1 Saund. 228, note 1; Walpole v. Marlow, 2 N. H. Rep. 385.

It is contended, in the present case, that the defect in the declaration has been cured by the verdict, because it is not to be supposed that a jury would give a verdict, or the court suffer one to be given, without proof of the defendant’s liability, in some form, for the default of Smith. The principle has never been, and cannot be extended to permit any such vague and indefinite sort of pleading. If such presumption be sound, why would it not dispense with the necessity for any declaration whatever, as well as of so essential a part ? It is not even alleged generally that the defendant is answerable or liable for Smith, if that form of allegation would be sufficient after verdict.

Judgment arrested. Leave granted to move to amend in the court of common pleas.

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Bluebook (online)

19 N.H. 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/low-v-tilton-nhsuperct-1848.

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