
    Fulgham v. Lightfoot.
    [Monday, May 7th, 1798.]
    Amendments and Jeofails — Necessary Averments.— What defects in a declaration, and the want of what averments, will be cured after verdict.
    Same — Same—Distinction.—The distinction is, between necessary facts being not stated at all, and being imperfectly stated.
    In Case, the plaintiff, in his declaration, complained of the defendant “of a plea of trespass on the case; for that, whereas, the said plaintiff being an inspector of lumber at Smithfield, in the county aforesaid, and parish of Newport, in the year of--, by which business he obtained an honest livelihood, at the salary of fifty pounds per annum, which was paid him by the merchants of the aforesaid town of Smithfield; and whereas, the said plaintiff hath been used to inspect lumber, from time to time, and to grant certificates for the same, purporting that the said lumber was good and merchantable, which said certificates were always signed with the plaintiff’s own hand ; and whereas, this defendant being a merchant in the town of Smithfield, aforesaid, having knowledge of the premises, and with an intent to cheat and defraud the defendant in his calling of a lumber-inspector, as aforesaid, did, some time in January, one thousand seven hundred and ninety-four, send down to Norfolk, the sloop--, loaded with lumber, to the-amount of thirteen or fourteen thousandstaves, including heading of good merchantable lumber; which sloop, aforesaid, had on board a certificate, or certificates, under the signature of the said plain-' tiff, purporting, that there was 251 *then onboard the said sloop, thirteen. or fourteen thousand staves, including heading lumber, aforesaid; and, the said plaintiff avers, that all and every certificate and certificates, for the aforesaid quantity of lumber, on board the sloop, aforesaid, were forged by the defendant; and the said plaintiff further avers, that he never had inspected any lumber whatsoever, belonging to this defendant, since the month of October, 1792; and, the said plaintiff avers, that the certificate or certificates for the lumber, aforesaid, were dated in January, 1794, as aforesaid; that the forgery of this defendant, in the certificates, aforesaid, is a great fraud upon the plaintiff, insomuch that the said plaintiff has been compelled thereby to leave off his business as an inspector of lumber, whereby he obtained a salary of fifty pounds per annum; that this, plaintiff brings here into Court, two forged icertificates for lumber, which said certificates the said plaintiff believes were forged by the defendant, and bear date, the one certificate the fourth of January, 1794, the other certificate the fourteenth of January, 1794; and the said plaintiff positively avers, that the certificates last mentioned, are not the hand-writing of the plaintiff; neither were they ever given for the lumber, specified therein, by the plaintiff; and the plaintiff verily believes, that the aforesaid certificates were forged by the defendant. By which means he has been necessitated to resign his office or calling as a lumber-inspector as aforesaid; and says, that he is damaged one thousand pounds.” Plea, not guilty, and issue. Ver-diet and judgment for the plaintiff, in the County Court, for 1501. and costs. The District Court affirmed that judgment; and, from the judgment of affirmance the defendant appealed to this Court.
    
      Wickham, for the appellant.
    There is no positive charge of a forgery. In one part of the declaration, the plaintiff says, that the defendant forged the certificate or certificates which were on 252 *board the sloop; but in another he says, that he brings into Court two certificates which he believes were forged by the defendant. This either qualifies the first charge of forgery into a belief only, or else there were two sets of certificates; and then it will not appear, for which of them, damages were given. The special damage should have been stated with precision, for three reasons: 1st. To prevent surprise upon the defendant, and to put it in his power to come prepared to defend himself. 2d. To authorize the jury to enquire into it as a matter comprized within the issue; and, therefore, properly falling under their consideration. 3d. To enable the Court to decide whether the matters stated as constituting the damage, were in themselves the grounds of an action. But, it does not appear how' the loss of office came to pass; for, it is not a clear consequence of the forgery. It ought therefore to have been stated, as it was the gist of the action, and for want of it no presumption will be admitted, that the proper proof was given on the trial: Because the declaration does not contain the averments necessary to introduce it. The omission, therefore, is fatal, and the verdict does not cure the defect. Chichester v. Vass, [ante, p. 83,] in this Court. Office, means public employment under government; and, therefore, the plaintiff must have been an inspector of lumber under the law. If so, the act of Assembly, R. C. 249, prescribes the remedy; and no other could have been pursued. 11 Co. 89, (b).
    Call, contra.
    The plaintiff alleges an occupation which was beneficial to him, and that he has lost it in consequence of an illegal act of the defendant: Which must upon principle be the ground of an action. 1 Bac. Abr. 55, cites Poph. 144 ; 1 Com. Dig. 230. Although the manner of losing the office is not stated, 3Tet the Court will intend that it was proved, after verdict. Suppose a woman brings an action of slander, and alleges that she thereby lost her marriage, without 253 shewing *how, this will be good after verdict: Which in principle is the same with the case at bar; for, it would be necessary to set forth the manner of the loss in that case, as it can be in this. The decision in Chichester v. Vass, was only that, where there was nothing in the declaration, to warrant the introduction of the testimony which constituted the cause of action, that there, it would be bad after verdict. But here, the declaration covered the evidence, and, therefore, it will be intended, after verdict, that the cause of action was actually proved. Office may be an employment under a private person, as well as under government; Cowell’s Interp. tit. Office; and consequently the argument drawn from the act of Assembly does not apply; because, the declaration states that his salary was paid by the merchants.
    
      
      Amendments and Jeofails — Necessary Averments— Distinction. — A verdict cures, where the necessary facts are imperfectly stated, but not where they are entirely omitted. Por this distinction, the principal case is cited with approval in Horrel v. McAlexander, 3 Rand. 101; Long v. Campbell, 37 W. Va. 671, 17 S. E. Rep. 199. See Holladay v. Littlepage, 2 Munf. 541. See foot-note to Chichester v. Vass, 1 Call 83.
      Declaration — Gist of Action. — The gist of the action must be stated in the declaration directly, and not by way of recital. See the principal case cited in Faulcon v. Harriss, 2 H. & M. 554; Sims v. Alderson, 8 Leigh 487.
    
   PENDLETON, President,

after stating the case, delivered the resolution of the Court, to the following effect:

Whether the damages are excessive or not, we have nothing to direct our judgment; and are bound to presume they were given commensurate to the real injury, and were not the effect of a vindictive temper in the jury.

That a man, deprived of a beneficial office, may maintain an action against him, who, by an unlawful act deprives him of it, is admitted by Mr. Wickham; but it is properly objected by him, that a declaration stating that abstract proposition without shewing how it applies to the parties, would be insufficient even after verdict.

The question therefore is, whether this declaration sets forth sufficient matter to entitle the plaintiff to the application of the principle?

The declaration is certainly informal, and a skilful pleader would have put it into a better shape. A proper declaration would have set forth, that the plaintiff was duly appointed inspector of lumber at Smith-field, and entitled to the legal fees 254 *of that office; to be paid to him, by all such as exported lumber from the said town; who were compelled by law to obtain his certificate of such inspection, before the lumber could be exported. By which fees the said plaintiff received from the merchants of Smithfield, an income of 501. a year for the better support of himself and family; yet, the defendant not ignorant of the premises, but contriving and fraudulently intending to render the employment aforesaid of the said plaintiff unnecessary, and thereby deprive him of his legal fees aforesaid, forged the certificate ; whereby the plaintiff was deprived of his fees of office aforesaid to his damage, &c. And we are to examine if the essential parts are pursued in the present declaration.

I throw out of the case the latter part of the declaration relative to the two certificates : Which I consider as different from the part first particularly stated, and take the declaration as stopping at the end of the averment as to the first. Thus, viewing the other as a separate count, or rather as a profert in curia of other papers which he meant to use in evidence.

The declaration states the plaintiff to be an inspector of lumber at Smithfield, by which he obtained an honest livelihood at the salary of 501. per annum, which was paid him by the merchants of that town. That he had been used to inspect lumber from time to time, and to grant certificates purporting that the lumber was good and merchantable, which was alwa3's signed with his own hand. That the defendant, a merchant in that town, having knowledge of the premises, and with intent to cheat and defraud the plaintiff in his calling of a lumber-inspector, did, some time in January, 1794, send down to. Norfolk a sloop loaded with lumber, to the amount of thirteeii or fourteen thousand staves, including heading of good merchantable lumber, which sloop had on board a certificate or certificates under the signature of the plaintiff, purporting that there was 255 on board *the lumber before described. It then avers, that all and every certificate or certificates for the lumber on board the sloop were forged by the defendant, and further, that he never inspected any lumber for the plaintiff since October, 1792. That the certificate or certificates aforesaid, were dated in January, 1794, and that the forgery of the defendant, in those certificates, is a great fraud.upon the plaintiff, insomuch that he has been compelled thereby to leave off his business as an inspector of lumber, whereby he obtained a salary of 501. a year, to his damage, &c.

It is objected, that the plaintiff should have stated specially, how the act of the defendant operated to produce the loss in his employment; and if, as the counsel insisted, it was impossible to draw the conclusion from what is set forth, that such was the effect of the defendant’s act, the objection would have been good; although, it is alleged it was done by the defendant, with intent to cheat and defraud the plaintiff in his office, with an averment, that he was thereby compelled to leave off his office, by which he obtained a salary of 501. a year.

The difficulty arises from an idea impressed by the word salary; which, in common acceptation, imports a certain annual stipend, payable to an officer for performing his whole duty, and if those for whom he was to act, excused him from the duty, no' matter how, by forgery or otherwise, if he continued to receive his annual stipend, he could have no reason to complain. But, when we recur to the act of Assembly, [c. 124, R. C. ed. 1803,] and find no salary annexed to the office, but that the profits were fees to be paid for each inspection and certificate ; the term salary, explained by what follows, that it was paid by the merchants of Smithfield, must mean an income arising either from the fees to be paid by those merchants, when his services were required, or (which the charge might mean) from a commutation of those fees, by a gross sum paid annually by the merchants; In either case, if he lost the income by the forgery, his right of action was equally sustainable.

*CIpon the general charge, that he lost his salary or income by the forgery of the defendant, made with intent to cheat and defraud him in his office, the defendant could not be surprised. He knew the act of Assembly gave fees, and not a salary; and, if there was a commutation, changing them into a certain sum, which had been paid, notwithstanding the forger3T, the defendant who is stated to be one of the body who made it, ought to have been prepared, and I presume was, to meet the proof of the plaintiff, on the loss to him by the forgery.

On this view of the declaration, and recurring to the act of Assembly, which requires the certificate of inspection, to be produced to the captain of a vessel, before lumber can be received on board for exportation, the consequential damages alleged, are so far from being impossible, that the3r are obvious. The forging of the certificate, rendered his employment unnecessary, and so deprived him of his fees.

The penalty spoken of, as the remedy which should have been pursued, is upon the captain who receives lumber on board, without a certificate of inspection; from which, this certificate would exempt him, unless he knew it to be forged. Besides, it is given to the informer, and not a party grieved: who is left to the common law remedy.

So, that I think, upon the whole, this declaration would be sufficient after a verdict, if we are not restrained by the precedent in this Court, in the case of Chichester v. Vass.

I have revised my notes in that case, and as far as concerns the present question, I believe.m3' opinion accorded with that of the other Judges. My note is this, ‘ ‘The promise as laid, does not upon the marriage, give the action; but, other things are to happen to entitle the plaintiff, which may be considered as the gist of the action, and ought to : have been averred; that is, that the defendant had given to another daughter such a sum; for, on that, his 257 right of action accrued upon *the promise to do equal justice to all his daughters. I concur in thinking this defect not cured by the verdict under the act of Assembly, presuming proof to have been given of facts imperfectly laid in the declaration, but not such as are not laid at all.”

That case establishes the distinction between necessary facts being not stated at all, and being imperfectly stated; and, the latter appears to be the present case. The loss of profit is alleged, but imperfectly; and, we presume, under the act, that the defect was supplied by proof to the jury. Rone of the cases cited appear to destroy this distinction, and

The judgment is, therefore, affirmed.  