Coulter v. Trustees of the Western Theological Seminary of the Presbyterian Church of the United States

* Robinson, J., delivered the opinion of the court. The general principle, upon which an arrest of judgment proceeds, is, that the facts averred by the plaintiff, and found to be true by the jury, do not constitute a sufficient cause of action. And the criterion, by which to distinguish between such defects in a declaration as are, and such as are not cured by a general verdict for the plaintiff, is laid down by Lord Mansfield, in Rushton v. Aspinall, Doug. 679, to the following effect,: Where the statement of the plaintiff’s cause of action, and that only is defective or inaccurate, the defect is cured by the verdict, because, “ to entitle him to recover, all circumstances necessary in form or substance to complete the title, so imperfectly stated, must be proved at the trial.” But where no cause of action is stated, the omission is not cured by verdict. Gould’s PL 497.

That the declaration in this case sets out a sufficient right of action, and that this right is in no wise impaired by the production of the bond in the oyer; are questions which cannot admit of a doubt. Whether the bond was payable on demand, according to the legal intendment of the averment in the plaintiff’s declaration, or three years after date, as appears in the oyer, it was nevertheless due, and the right of action had accrued when this suit was instituted. The variance could not operate to the prejudice of the defendant, because the bond exhibited in the oyer, being part of the plaintiff’s declaration, and also a matter ⁷⁵ of record, (Birckhead v. Saunders, 2 H. & G. 82 ,) the defendant was not only apprised of the plaintiff’s demand, but the record wo'uld have furnished a complete defense to a second suit instituted on the same bond. A defective allegation .in the declaration, which