Poland v. Grand Trunk Rail Road

The opinion of the court was delivered by Barrett, J. The replication shows that in the former suit the judgment was reversed, pro forma, under the rule made in the county court, and the cause was remanded for trial, with leave to the plaintiff to amend his declaration; also, that after the evidence in support of said action was all in, the court decided as matter of law that it did not support the declaration, and thereupon directed a verdict for the defendant. It further shows that in the second term of the county court after said cause was remanded and entered in it, the suit was nonsuited by order of the court; but it does not state for what cause the nonsuit was ordered. Yet, as it fails to aver compliance with the order as to terms of amendment, or that any amendment was made or offered to be made under the leave granted, it is to be assumed that the nonsuit was ordered for failure to amend on the prescribed terms. Upon this posture of the case, the plaintiff claims that it is within the provision of the statute giving a year, as against the statute of limitations, for the bringing of a new suit on the same subject-matter that the former suit was brought for. It is conceded that it is not within the terms, but is claimed that it is within the equity, of that provision of the statute; and this, for the reason that the former action failed on the ground of variance, and, therefore, failed for matter of form. Two things are to.be said in regard to this: first, the replication does not show by averment or intendment, that the variance was of such a character as entitles it to be regarded as “ matter of form” in the legitimate sense of that expression. It is pre [77] sumable that the cause of action set forth in the former suit, was ample to ground a recovery, if established by the evidence. It is consistent with the replication to assume that the failure to support the action by evidence, resulted from having made by averment some fact material as the -subject of proof, which was not necessary to a valid cause of action in said suit; so that, while that declaration was ample for form and substance, it contained an averment that need not have been there in order to show a cause and right of action: but, being there, was material to be proved in order to warrant a verdict and judgment for the plaintiff. That would not be a defect in matter of form in the declaration ; and a failure to maintain it by evidence is not a variance as to “ matter of form.” It would be a failure to prove matter of substance, as the declaration was drawn. If it was not thus matter of substance, of course the court would not have adjudged such failure of evidence as warranting the ordering of a verdict for the defendant. Such a cause is not a known mode by which a defendant is enabled to avail himself of what, as matter of form, would be proper matter for a plea in abatement, or a special demurrer. The second thing to be said is, that the replication leaves it to be inferred that the plaintiff was nonsuited voluntarily, and because he chose to be. It certainly is not shown that he was compelled to be for failure in matter of either form or substance in his former declaration ; for he was in court upon it, with leave to make it just what he wanted it, and on terms agreed, on which he had gone to the supreme court, and had got back into the county court, under a rule giving him every advantage of a satisfactory declaration, except that he must pay, according to his agreement, for his experimenting with a declaration that he was unable to maintain by evidence. It is hence to be remarked that it does not appear from the replication, by averment or otherwise, that the going out of court by nonsuit was not through the fault of the defendant. It is not, as it could not well be, denied that the replication must show all that is necessary in order to bring the case within the provision of the statute relied on, if the plaintiff would have the benefit of that provision. Now it is to be noticed that the case of Phelps et al. v. Wood, [78] 9 Vt. 399, and of Spear v. Curtis, 40 Vt. 59, turned on the fact, affirmatively appearing, that the failure of the former suit was without the faulLand beyond the control of the parties. When one invokes the interposition of a beneficent statute that does not embrace his case in its terms, and can only be made to reach it in virtue of its equity, it is clearly needful that he should have a case in which affirmative equity requires the operation of the statute to be extended beyond its terms ; and such case must preclude the idea that the exigency for such extension resulted in any part from the fault of the party asking for it. The present is not such a case. On the contrary, it is not to be distinguished, so far as the controlling principle is concerned, from the case in the 23 Vt. 622, in which the plaintiff failed through poverty to get bail as ordered by the court, and so went out of court on non-suit. This is a stronger case than that against the plaintiff; for in this he was in no such strait, but he let the case go out as matter of choice, and not from any necessity. Under these views there is no occasion to give special consideration to the cases cited in the Mass. Reports. They do not go further than the cases in this state in giving scope to the equity of the statute.' Judgment affirmed.