Wilkinson County MsArchives Court.....Delahuff, George June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

GEORGE DELAHUFF vs. ABNER REED

The want of the original process, to bring the party into court, when he 
appeared, and took defence, cannot be taken advantage of by writ of error.

It is very doubtful, whether there is any mode, in which such defect could be 
taken advantage of, after appearance, defence, and verdict, but if there be 
any made, it is by writ of certiorari.

The omission to state in the declaration, the sum claimed, and the date of the 
promise, may be taken advantage of by special demurrer, but such error is 
cured by a verdict.

A verdict wi1l aid a title or demand defectively set out, but not a defective 
title.

Where there is a defect, imperfection, or omission, fatal on demurrer, yet, if 
the issue be such, as necessarily requires on the trial, proof of the facts 
omitted, or imperfectly stated, without which, the party could not recover, it 
is cured by verdict.


OPINION OF THE COURT—by THE HON. JOHN TAYLOR.

This is a writ of error, to the superior court of Wilkinson county. The errors 
assigned are.

1st. There was no original writ.

2nd. No date, on which the promises should have been made, nor sum of money 
mentioned in the declaration.

3d. The jury ought to have been sworn to try the issue, whereas they were 
sworn to give a true verdict. On the first and third errors, whether the want 
of an original process, to bring the party into court, could in any way be 
taken advantage of, after the party appeared, and took defence, is very 
doubtful. If it could, it must be after such a suggestion on the record, and 
so sustained on a writ of certiorari, for the leading process, makes no part 
of the record, unless made so in this way. As to the third error; on an 
inspection of the record, it appears, not only substantially, but formally 
correct. After setting forth the issues joined in the cause, it goes on to 
state, that the jury were sworn to enquire of the premises.

With respect to the second error assigned, it certainly would have been fatal 
on a special demurrer, but the court are of opinion, it is cured by the 
verdict. From all the authorities, it appears, that where there is a defect, 
imperfection or omission, which would be fatal, on demurrer, yet if the issue 
be such, as necessarily requires on the trial of the cause, proof of the facts 
omitted, or defectively, or imperfectly stated, without which, the party could 
not recover, it is cured by the verdict, for it is to be presumed, that these 
facts were so proved.—11 Johnson, 143 Salk, 662. 2 Johnson 550. 1st Call. 91 
253. 1 Term Rep. 144. 2 Bacon Ab’r 24. 4 Bur. 2455. 1 Saunders 128. Con. 826. 
Bur 2018. 

Where the declaration wants statement of time, place, and other circumstances, 
these defects may be cured by a plea in bar, and the finding of jury. 8 Co. 
120, 7 Co. 25. Dyer 15, pl. 78, 396, pl. 62. Cro. Car. 209. Co. Lit. 303. C. 
Pow. 149. 1 Tidd’s prac. 405.

Again, a verdict will aid a title or claim defectively set out, but not a 
defective title or demand. That is, nothing is to be presumed, after verdict, 
which is not stated in the declaration, or necessarily implied therefrom. 2 
Tidd’s prac. 827. Dong. 683.

In the present case, the plaintiff has shown a good cause of action, that is, 
a valuable consideration, and a promise to pay. The omission is, the time of 
the promise, and the value of the articles. Those defects or omissions are 
clearly within the foregoing rules, and are cured by the pleas, and the 
verdict of the jury. In the language of the authorities, it is a good title, 
defectively set out. The amount and value of the goods, or the sum promised to 
have been paid therefor, must have been proved to the jury, or it is not be 
presumed, they would have found for the plaintiff, and in establishing the 
sale of the goods, the date of the transaction must have appeared. The 
judgment of the Court below must be affirmed.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 74-75.

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