Lord Ellenborough, J., declared: “Where a matter is so essentially necessary to be prov- ed that, had it not been given in evidence, the Jury could not have given such a Verdict, there the want of Stating that Matter in Express Terms in the Declaration, provided it contains Terms Sufficiently General to comprehend it in Fair and Reasonable In- tendment, will be Cured by a Verdict; and where a General Allegation must, in fair con- struction, so far require to be restricted that No Judge and No Jury could have properly treated it in an unrestrained sense, it may be reasonably presumed, after Verdict, that it was so restrained at the Trial.” And, the principle was well stated, as previously ob- served, that “where there is any Defect, Im- perfection, or Omission in Any Pleading, whether in Substance or Form, which would have been a Fatal Objection upon Demurrer; yet if the Issue Joined be such as necessarily required on the Trial Proof of the Facts so Defectively or Imperfectly Stated or Omitted, and without which it is not to be presumed that either the Judge would Direct the Jury to give, or the Jury would have given the Verdict, such Defect, Imperfection, or Omis- sion, is Cured by the Verdict by the Common

50

It is only where a “Fair and Reasonable Intendment” can be implied that a Verdict will cure the objection. The Intendment must arise not from the Verdict alone, but from the combined effect of the Verdict, and the Issue upon which the Verdict was given, as shown by the Record. It is essential that the particular thing that is to be presumed to have been proven shall be such as can reasonably be implied from the Allegations on the Record. The criterion by which to distinguish between Defects in a Declaration

Schroeder, 74 III. 158 (1874); Ladd v. Piggott, 114 Ill. 647, 2 N.E. 503 (1885).

85 Eng.Rep. 244, 245 (1669). See, also, City of Elgin v. Thompson, 98 III.App. 358 (1901).

which are, and such as are not, Cured by Verdict, was laid down in the year 1781, by Lord Mansfield, in the case of Rushton v. Aspinall,51 to the following effect: Where the statement of the plaintiff’s Cause of Ac- tion, or Title, is Defective or inaccurate, the Defect is Cured by a General Verdict in his favor; because, to entitle him to re- cover, all circumstances necessary, in Form or Substance, to complete the Title so Im- perfectly Stated, must be proved at the Trial, and it is therefore a fair presumption that they were so proved. But, where no Title or Cause of Action is shown, the Omission is Not Cured; for if a necessary Allegation is alto- gether Omitted from the Pleading, or if the latter contains Matter Adverse to the Right

Rep. 88 (1813); Nerot v. Wallace, 3 T.R. 25, 100

Eng.Rep. 436 (1789); Weston v. Mason, 3 Burr. 1725,

97 Eng.Rep. 1067 (1765); Illinois: Bowman v. Pee- ple, 114 III. 474, 2 N.E. 484 (1885); Barnes v. Brook-- man, 107 Ill. 317 (1883); Smith v. Curry, 16 III. 147

(1853); Missouri: Richardson v. Farmer, 36 Mo.

35 (1865); Roper v. Clay, 18 Mo. 383 (1853); New

(1855); Town of Colebrook v. Merrill, 46 N.II. 100

(1865); Pennsylvania: Miles v. Oldfield, 4 Yeates

(Pa.) 423 (1807).

As to the assignment of a General instead of a Spe- cial Breach, see Minor v. Mechanics’ Bank of Alex- andria, 1 Pet. (U.S.) 63, 7 L.Ed. 47 (1828). Cf. Abra- hams v. Jones, 20 Ill.App. 83 (1886).

On the Statement of a wrong Venue, see Barlow v. Garrow, Minor (Ala.) 1 (1820); on a Defective Con- sideration, see Hendrick v. Seely, 6 Conn. 176 (1826); on a Joinder of Good and Bad Counts in the same Declaration, see Payson v. Whitcomb, 15 Pick. (Mass.) 212 (1834); on the Defective State- ment of a Good Title or Cause of Action, see Gard- ner v. Lindo, 1 Cranch C.C. 78, Fed.Cas.No.5,231 (1802); New Hampshire Mut. Fire Ins. Co. v. Walk- er, 30 N.H. 324 (1855); Clark v. Fairley, 24 Mo.App. 429 (1888); on Want of Special Demand, see Bliss v. Arnold, 8 Vt. 252 (1836). See, also, Andros V. Childers, 14 Or. 447, 13 P. 65 (1887); McCune v. Norwich City Gas Co., 30 Conn. 521 (1862); Moline Plow (Jo. v. Anderson, 24 Il1.App. 364 (1887); Blair v. Chicago & A. Ry. Co., 89 Mo. 383, 1 S.W. 350 (1887); Palmer v. Arthur, 131 U.S. 60, 9 S.Ct.

649, 33 L.Ed. 87 (1888); Western Union Tel. Co. v. Longwill, 5 N.M. 308, 21 P. 339 (1889).