#### John W. Slack *versus*Peter Lyon *et al.*

A declaration which is had in substance on account of its omitting material allega- ’ tions, is cured by a plea of die defendant, which sets out the material facts omitted in die declaration.

If a complaint under the statute of 1794, c. 74, for overflowing the complainant’s land, by means of a dam across a river, does not state that the water is raised by the defendant for die purpose of carrying a water-mill, it is a defect in substance.

But this defect is cured by a plea in which the respondent avers that he is owner of a mill on and below the dam, and as such owner has a right to raise the water by means of the dam.

This was a complaint under the statute,, in order to obtain damages for overflowing the complainant’s land. His complaint alleged, that the defendants “ have maintained and kept up a dam across Charles River for six years last past, and still do maintain and keep up said dam, whereby the lands ” of the petitioner, since May 25th, 1825, “ have been overflowed and greatly damaged.”

*64The respondents pleaded, that a jury ought not to be empannelled to appraise the yearly damage, because they are seised and in the possession and occupation of certain mills on and below the dam, and by reason of such seisin, possession ■ and occupation by them and those whose estate they have, they, for all the time mentioned in the complaint, had, and still have a right, by means of the dam, to raise the water as high as it has been raised by this means during the time mentioned in the complaint, without paying damage.

The replication denied the right of the respondents to raise the water as high as it had been raised, without paying damage. Issue was thereupon joined, and a verdict found for the complainant.

The respondents then moved in arrest of judgment,, because the complaint did not allege that the dam was erected and kept up and the water raised for the purpose of working or turning any water-mills, or that there were any mills on, below, or connected with the dam, by means of which the complainant’s land was overflowed.

*Richardson*and Cushing, in support of the motion,

contended that the defect in the complaint was one of substance, and that it was not cured by the verdict or by the respondents’ pleading over. They cited *St.*1795, c. 74 ; *Kingsley*v. *Bill,*9 Mass. R. 198 ; *Stilson*v. *Tobey,*2 Mass. R. 521 ; *Avery*v. *Tyringham,*3 Mass. R. 160; *Wells v. Prince, 4*Mass. R. 64 ; *Fuller*v. *Holden, 4*Mass. R. 498 ; *Spear*v. *Bicknell,*5 Mass. R. 132 ; *Cutler v. Southern,*1 Lev. 194 ; S. *C.*1 Saund. 116; Com. Dig. *Pleader, C*85, *C*87, *E*37 ; *Badcock*v. *Atkins,*Cro. Eliz. 416 ; *Pelton*v. *Ward,*3 Caines’s R. 73; 2 Chit. Pl. 424, note 1, (Phil. ed. 1819) ; Williams’s note in 2 Saund. 74 b ; *Bonham’s case,*8 Co. 120 ; *Elwis*v. *Lombe,*6 Mod. 119; *Rigeway’s case,*3 Co. 52; *Butt’s case, 7*Co. 25.

*Metcalf,*for the complainant,

admitted that the defect in the complaint was not cured by the verdict, but insisted that it was cured by the plea in bar. The old rule in Co. Lit. 303 *b,*that when a count is defective “by omission of some circumstance, as time, place, &c. there it may be made good by the plea of the adverse party, but if it be insufficient in matter, it *65cannot be salved,” meant only that matters of form, but not of substance, are *waived*by *mere pleading over. Anon.*2 Salk. 519 ; *Dunning*v. *Owen,*14 Mass. R. 162. But, however this may be, the weight of authority, as well as the better reason, is, that an *express admission*in a plea, of a material fact omitted in the count, supplies the defect. The cases of *Drake*v. *Corderoy,*Cro. Car. 288, and *Osborne*v. *Brooke,*Aleyn, 7, have overruled *Badcock*v. *Atkins,*cited on the other side. The approbation by *Spencer*J. (in *3*Caines,) of the latter case, was retracted in *Vaughan*v. *Havens,*8 Johns. R. 84, and the authority of *Drake*v. *Corderoy,*recognized. *Metcalf*also cited *Brooke*v. *Brooke,*1 Sid. 184 ; *Zerger*v. *Sailer,*6 Binn. 24 ; Stephen on Pl. 165 ; *Gelston*v. *Hoyt,*13 Johns. R. 578 ; *[United States*v. *Morris,*10 Wheat. 286.]

Parker C. J.

delivered the opinion of the Court. No doubt the complaint is insufficient, as it does not bring the case within the statute ; but the defect is cured by the plea. The plea sets forth the purposes for which the water was raised, bringing the case within the statute. The merits of the question have been tried, and the respondent ought not to be allowed to go back to a fault which he ought to have discovered at the beginning, unless the law clearly requires it.

The authorities are contradictory ; some maintaining that a count defective in substance cannot be cured by pleading over; others the contrary. We are at liberty to follow those which seem to be founded on the better reason. Two of the old cases very decidedly maintain the affirmative ; that in Cro. Car. 288, where a count for slander, defective in substance, was cured by the defendant’s plea, and the case in Siderfin. In this last case the plaintiff counted against the defendant in trespass, alleging that he bad taken his hook. The defendant pleaded, that the plaintiff being about to strike him with the hook, he took it out of his hands in order to deliver it to a constable. It was moved in arrest, for that the plaintiff had not averred that the hook was in his possession. The court said, had the defendant pleaded the general issue, the plaintiff could not have had judgment ; but having shown that he took the hook out of the possession of the plaintiff, he had thereby • *66cured the defect in the count. These two cases do not apPear to have been overruled, in England ; on the contrary, they are cited in the digests and text-books without disapprobation, down to the recent work on pleading by Stephen.

In New York, however, a contrary doctrine was held, it being laid down in the case in 3 Caines, that a count defective in substance can in no case be cured by the defendant’s plea ,' and the case of *Drake*v. Corderoy, passed in review before the court. But in a later case, in Johns. R. the case of *Drake*v. *Corderoy*is distinctly put to the court, and *Spencer*J., who delivered the opinion, expressly admitted its authority.

The way then is open to us to adopt the more reasonable doctrine, which we think is, that when the defendant chooses to understand the plaintiff’s count to contain all the facts essential to his liability, and in his plea sets out and answers those which have been omitted in the count, so that the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy.

One of the counsel for the defendant has attempted to show that the defects in the two cases above cited, which were allowed to be cured by the plea, were in form only ; but in the case of the hook, the court go upon the ground that it was sub-1 stance ; and the case shows that it was. And so was the other case, of *Drake*v. *Corderoy.*The counsel have ingeniously attempted to escape from those cases, by showing that the defects were only in particularity of the averment; but the particulars left out were essential to the averment, so that it was substantially defective.1

*Motion in arrest overruled.*

1

 See *Elliot*v. *Stuart,*15 Maine R. (3 Shepley,) 160; 1 Chitty on PI. (7tk Am. ed.) 710 to 712; Revised Stat. c. 116, § 5.