Dill v. Jones

By the Court. Nisbet, J. delivering the opinion'. This was a motion to set aside a verdict and judgment, on the ground that the plaintiff had not set forth a sufficient cause of action. The writ contained the common counts for money had and received, and for money paid, laid out and expended; without specifying by bill of particulars or otherwise, wherein the money was had and received, or on what account it was paid, laid out and expended. [81] In Murphy vs. Lawrence, 2 Kelly, 258; we lay down [ 1. ] this fundamental law of pleading, to-wit: “ The facts must be so plainly, fully and distinctly set forth, as to inform the opposite party of the grounds of the plaintiff’s action, to enable the jury to find an intelligible and complete verdict, and to enable the court to declare distinctly the law of the case.” This rule was declared with reference both to our statute, and the common law. We can not find a better, upon principle, or by reference to authority, and are unwilling to modify it, 1 Chitty Pleadings, 215, 216; Cowp. 682; 6 East. 422; 1 Kelly, 70; 2 id. 258. According to this rule, this writ is defective, it does not with sufficient distinctness, clearness, and fulness, set forth the plaintiff’s cause of action. In Murphy vs. Lawrence, we have established this further rule of pleading, to wit: “ Where the declaration shows a title or cause of action defectively set forth, the deficiency is not good in arrest of the judgment, but will be cured by a verdict,” 2 Kelly, 260, 261. Such a declaration is therefore amendable. Ip this writ, the counts show a cause of action, but defectively set fordi. Money had and received to the plaintiff’s use, or paid, laid out and expended for the use of the defendant, is a good cause of action; but the setting forth is defective in the particulars complained of. If the cause of action be defective, then it is not amendable, and it is good ground to arrest the judgment. 1 Chitty Plead. 319; 1 East. 209, 210; 2 Saund. 352, note 3; 2 Burrow 900; Doug. 687, note g & h; 1 Saund. 228, b: 16 Pick. 128; 6 Id. 409; 5 Mass. 306; 7 id. 169; 10 id. 316. A further rule established by this Court is, that all amendable defects are cured by verdict. Bond vs. the Central Bank, 2 Kelly, 100; Goodlow vs. Potts, Cooke R. 399; 3 Cowen R. 662; 3 Fairf. 44. The plaintiff in error was too late with his motion to arrest the judgment. I am glad that in this case we are enabled-store decisis. Let the judgment below be affirmed.