
    Josiah Bemis versus James Faxon.
    A declaration in assumpsit laying the promise on a day before the teste of the writ, is well enough after verdict; though it would be bad on a special demurrer.
    This was an action of the case in assumpsit, commenced by a writ, dated April 9, 1805, and pending in the county of Norfolk. The plaintiff declares upon a promise, made by the defendant, on the first day of September, 1805, to carry a certain stone post for the plaintiff from Bass’s Corner to Black’s Wharf, within a reasonable time, and that the * defendant, although [*264] afterwards, on the first day of March, 1805, requested, never performed his promise, but so carelessly conducted himself in the premises, that by his negligence and default the said stone post had been broken and wholly destroyed.
    Upon the general issue pleaded, a verdict had been found for the plaintiff; after which the defendant filed a motion in arrest of judgment, upon the ground that the promise is alleged to have been made before the teste of the writ.
    This motion was argued at Dedham, September term, 1807, by T. B. Adams for the defendant, and T. Williams for the plaintiff.
    In support of the motion, Adams argued that the rule is, if the plaintiff' will himself discover to the Court any thing, whereby it may appear that he had no cause of action when he commenced his suit, his writ shall abate. 
    
    Thus, where the teste of the original was before the day of payment in the condition of the bond, on which the action was brought it was adjudged error, although after verdict. 
    
    So in assumpsit, where it appeared by the declaration that the action was brought before the cause of action accrued.  And by Lord Mansfield: 
       No proof at the trial can make good a declaration which contains no ground of action on the face of it. By Bidler, J.:  After verdict, nothing is to be presumed but what is expressly stated in the declaration, and is necessarily implied from those facts which are stated.
    
      Williams
    
    contended that though this declaration must have been acknowledged bad on demurrer, yet that the verdict had cured it. The statute of 1782, c. 11, $ 6, requiring demurrers to declarations tobe filed before the jury is impannelled will be evaded, if advantage can be taken of such defects after verdict. The verdict shows that the facts must have taken place before that time, and this action must therefore be a good bar to another action for the same cause. The declaration alleges the request to have been made before the date of the writ, which is inconsistent with the time al- [ * 265 ] Ieged for the * promise ; and the Court will reject the first, in order to support a verdict.
    
      
       5 Gwil. Bac. Abr. 332.
    
    
      
      
        Cro. Ehz. 325. Moore, 398
    
    
      
      
        Cro. Jac. 574.
    
    
      
      
        Doug. 681
    
    
      
       1 Term Rep. 141.
    
   The cause stood continued nisi, and now the opinion of the Court was delivered by

Parsons, C. J.

Had this objection been made on special demurrer, the declaration must have been quashed ; but the plaintiff insists that the fault, which was a mere slip of the pen, is cured by the verdict.

If we take the whole declaration together, it seems impossible that the defendant could doubt as to the specific nature of the complaint against him, or that the jury could have been misled. It is true that the promise is alleged to be made at a day to come; but the breach is alleged to be committed afterwards, on a day then past. We therefore feel a disposition to support this verdict, if it can be done without violating any correct principle.

It is not easy to reconcile all the cases on this subject; but the case of Sorrel vs. Lewin, reported in 1 Keb. 354, is in point. In that case, indebitatus assumpsit was brought, and the assumpsit laid on a day not then come. Infancy was pleaded in bar, to which the plaintiff replied that it was for necessaries ; and on issue being joined, the verdict was for the plaintiff. Upon motion to arrest the judg ment for this fault in the declaration, the court observed that there should have been a special demurrer, that it was well enough after verdict, which could not have been found for the plaintiff, but on evidence of a promise made before the action, and a duty before the promise. And the plaintiff had judgment. The principle of this case is very reasonable, and, as it is an authority in point, the plaintiff in the principal case must have judgment.  