President of the Highland Turnpike v. M'Kean

11 Johns. 98

Opinion

Per Curiam.

The ground urged by the defendant’s counsel, in support of the motion in arrest of judgment, is the want of an averment in the declaration that the defendant, at the time of subscribing, paid to the commissioner the sum of five dollars "on each share subscribed by him. The necéssity of such an averment appears to be supported by the decisioh of the court of .errors, in the case of Jenkins v. The Union Turnpike. (1 Caines’ Cases in Error, 86.) It is "a little difficult to ascertain the point upon which the court of errors grounded their decision. One of the questions before thém was the one raised on the argument of the present motion; and this court, in the casé of The Goshen Turnpike Company v. Hurtin, (9 Johns. Rep. 218.) seemed to suppose that to have been the point upon which the court of errors intended to decide; and according to that decision, an averment of the payment of five dollars on each share at the time of subscribing was necessary.

The first count in this declaration can, however, be supported without infringing upon the doctrine of the court of errors. It contains averments of facts which, in judgment of law, must be deemed equivalent to an averment of a payment of the money. The defendant was a commissioner to receive subscriptions; and he subscribed, while the book was in his own hands. This was, no doubt, a valid subscription, so as to entitle the defendant to the stock subscribed; and it would be a useless ceremony for him to pay himself the money required to be advanced on the subscription.

The second count, however, contains nothing equivalent to such an averment, or that can be considered as dispensing with a specific averment of the payment of the five dollars on each share; and the verdict being general, the judgment must be arrested, unless the verdict can be amended by the judge’s notes, so as to apply to the first count only.

Judgment arrested.'