Wright v. Bourdon

The opinion of the court was delivered by Ross, J. On the trial by the jury in the County Court, the court held, “ that if the plaintiff should prove and the jury should find that all the allegations in the plaintiff’s declaration were established, still the plaintiff was not entitled to recover, and ordered a verdict for the defendants,” to which the plaintiff excepted. The plaintiff claims, if his declaration was fatally defective-in alleging a cause of action, that inasmuch as the defendant had traversed it, he had a-right to have that issue tried by the jury, and that the court erred in directing a verdict for the defendant. [498] It is not stated that the plaintiff claimed the right to enter a non-suit. If he had claimed that right and been refused, a different question would have been presented. Whatever may have been the practice in England in regard to calling the plaintiff in such a case, and if he did not then enter a non-suit, to direct a verdict for the defendant, it was early established in this State, that the court, of its own motion; has the right, at any stage of the trial by the jury, to direct a verdict for the defendant in cases in which the plaintiff’s declaration is so fatally defective that it would be the duty of the court to arrest judgment if a verdict should be found in his favor; that the court need not go through the useless and, to the State, expensive labor of a jury trial, which could be of no avail to the plaintiff if it resulted in his favor, simply because the defendant had traversed rather than demurred to the declaration. Smith v. Joiner, 1 D. Chip. 64; Gleason v. Peck, 12 Vt. 50; Baxter v. Winooski Turnpike Co. 22 Vt. 114; Batchelder v. Kinney, 44 Vt. 150. Is the plaintiff’s declaration thus fatally defective ? We think it is. The use of the words, “ falsely and fraudulently,” as characterizing an allegation in the declaration, does not make it false and fraudulent, unless sufficient facts are alleged — it may be imperfectly and informally — to give it that character. Ide v. Gray, 11 Vt. 615. The declaration in the case at bar, in this respect, is quite analogous to that in Ide v. Gray. It abounds in the use of the words, “falsely and fraudulently,” but fails to state that the act or fact with which it alleges the defendants threatened to charge, and did charge, the plaintiff, was false, or, if false, that it was known to be false by the defendants. If the defendants honestly believed the charge — the charge not being that of a crime — to be true, the making of it would not be fraudulent as to them, however false in fact it might be. Fraud, and damage resulting therefrom, constitute the gist of the cause of action attempted to be set forth in the declaration. Fraud is a fact, which must be established, in order to give the plaintiff the right to recover in such case. He must, therefore, set forth in his declaration such facts and circumstances as, when proved, will render the [499] act of which he complains fraudulent in fact. This the plaintiff has failed to do. It would therefore have been the duty of the court to have arrested judgment, if the issue joined had been found by the jury in the plaintiff’s favor. There was, therefore, no error in the ruling of the County Court to which exception was taken. Judgment affirmed.