Gent v. Cole ex rel. Cole

Alvey, J., delivered the opinion of the Court. The verdict in this case being against the defendant, he moved in arrest of judgment, on the ground that the declaration did not disclose a sufficient cause of action. This motion was overruled by the Court below, and the first question presented on this appeal is5 was the motion in arrest properly overruled? The declaration as originally filed, contained three counts, and, under leave to amend, a fourth was added.

The first three counts were in case, and the last in trespass. This joinder of counts, in a case like the present, is allowable, by the law of Maryland, as decided in the case of Williams vs. Bramble, 2 Md., 313 . All the counts in the declaration are certainly very defectively and inartificially drawn, and it would be difficult to sustain either of them on general demurrer. For, as observed by Mr. Justice Bullur, ([Dougl., 159,) it is one of the first principles of pleading, that facts shouldbe stated, “for the purpose of informing the Court, whose duty it is to declare the law arising upon those facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.” This essential and fundamental principle, which is incorporated into our simplified system of pleading, (Code, Art. 75, sec. 2,) has certainly been ignored in framing the counts in the present declaration.

The statements of the tortious acts complained of, and of the manner by which they effected injury to the plaintiff, are altogether too general and indefinite to be good on demurrer.- But the defendant, instead of demurring, pleaded over, and issue was joined thereon ; and such being the case, the principle is, that “where there is any defect, imperfection, or omission in any pleading, whether in substance ¹¹⁴ or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict.” 1 Wms. Saund., 228, n. (1;) Jackson vs. Pesked, 1 M. & S., 234 ; Merrick vs. Bank of the Metropolis, 8 Gill, 59 . The principle as here stated is also substantially, and