Town of Walpole v. Town of Marlow

2 N.H. 385

• Court: Superior Court of New Hampshire
• Decided: May 15, 1821
• Status: Published

Opinion

Richardson, C. J.

It is contended in this case that judgment must be arrested, because the declaration does not allege, that the pauper had no relations by law bound to support her. If the title stated in the declaration be defective, the judgment must be arrested. But if this be only an instance of a title defectively stated, the defect is cured by the verdict. The true distinction between a defective title, and a title defectively stated, is this : when any particular fact is essential to the validity of the plaintiff’s title, if such fact is neither expressly stated, in the declaration, nor necessarily implied from those facts which are stated, the title must be considered as defective, and judgment must be arrested; but if such fact, although not expressly stated, be necessarily implied from what is stated, the title must be considered only as defectively stated, and the defect is cured by a verdict.(2)

The declaration in this case contains an allegation that the town of Marlow was by law chargeable with the support ot the pauper. This allegation necessarily implies and could not be proved without evidence, that the pauper had no relations bylaw bound to support her. For if she had such, relations, the town of Marlow was not chargeable with her support. This then is an instance, not of a defective title, but of a title defectively stated. The defect is cured bv the. verdict, and judgment must be rendered on the verdict.