Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-01-12

adnlssfble. And thus, all that was necessary
TO be supplied In the declaration, viz: some
particular tisaS when the tEespass was CON-
United, Is, by legal t~ntendment, supplied by
Sec. %. On the other hand, facts not alleged
and which ara not implied n, or fHferdble from,
those which are alleged and found, cannot be
presumed 70 have been proved to the jury; In
other words. no fact not alleged can be pre-
sumed In support ofa verdict, unless proofofits
existence must have been fRpolUed In, or isfnHsTs
able from, the proofof those which are alleged,
and which the verdict has found. there being
no foundation furnished by the record for any
iotendment or inference that any other fact
not ayerred was proved at the trial.
Sec "a Agpins fin an action for any injury
done by the defendsnt's dog to the person or
beast Of the plaintiff, the declaration omtts the
soteaJer ian allegation of the d~efendanI's pre-
Vious knowledge that his dog was addicted 70
similar mischief, q verdict of guilty" will
not aid the declaration. For all the material
fact alleged in the declaration, viz: the de-
fendsnt's ownership OF the mischievous ami
mal-the latters addtctsdness to similar mis-
chtsf-and the damage done to the plaintiff
furnish no legal inference Of the defendants
previous 80 e1oe, since proof Of any or all of
the former facts, does not necessarily involve
any evidence Of the latter.
Mr.. CsruGhers, in history of q Lawsuit,
?. $50, 1877. Is to the same effsot.
Now, applying these principles to this
case, Is 1t not manifest that his Is g state
ment of a defective cause Of action, or
rather q statement excluding q q OF
action9 And Is 1t not equally es manifest
that the verdict does not cure the defect
for the facts which the court is to presume
proved, In order to sustain the verdict are
not only not implied In or infersble
from" those alleged, but are in derogation
or avoidance Of the legal effect of the
facts aIleged7 The gist OF plaintiffs case,
his ground OF action, Is shown by the sl-
legation of tbs facts avoiding the force of
the decree, and if this allegation is want
ing in the declaration, the proof of Ii can
not be legally made. Further, the plain.
tih's declaration, (Resd Gould, D. 100, 2 Z,
8; p. 1852, ! H. and the proof avoiding the
force of the allegation, is not legal evil
dence, for 1t is mot conforming the pro6GtG
TO the dUegdtG. It follows, then, that the
dsfect Is not cured by verdict, and there
fore that the Judgment shall be arrested.
Then should the court grant q r~epleader3
No Because "R replesder," says Tidd,
q Tidd's Practice, p. s52l "can be
awarded after q demurrer, or writ of error,
but only after issue joined; nor where
the court can give judgment on the whole
record; and It Is not gKantable In favor Of
the party who made the first fault In
pleading"
Nor as a matter Of fact would q replead-
or be OF avail to the plsintiff, because 1t
would have to try again on the case now
stated In this declaration, for the reason
shaS JIG sbabuto "a uultAtlOus DArb II
from this material amendment. It, there
fore, must stand or fall by the case now
stated in its declaration. mo useful end
can be obtained by a~repleader." (Gould's
PL) The plaintiff therefore may take is
exception to the action Of the court ar
resting Judgment, and the defendant, to
the action Of the court overriding the mo-
ton for 3 new trial.
At common law, where judgment was
arrested, neither party recovered oostsI
the plaintiff could not, because of the
fault in pleading; the defendant, because
he did not dsmur to the fault. In this
State, too, each party In such q case pays
his own costs e Sneed, 1901, and such Is
the order Of the court In this case.
HEISKELL, Judge.