
    Henry L. Smith vs. Cyrus Cleveland & others.
    The following declaration was held to be sufficient, after verdict: For that the defend ants, on, &c.,at the meeting of the voters of the town of D. for the election of presi dent and vice president of the United States, governor and lieutenant governor of this Commonwealth, &c. &c., did, as selectmen of said -town presiding over said election, though the plaintiff, before offering his vote, furnished the defendants with sufficient evidence of his having the legal qualifications of a voter at said meeting, and requested them to insert his name on their list of voters, and though, at their meeting previous to the election, required by statute, to receive evidence of the qualifications of persons claiming a right to vote, the plaintiff had furnished the defendants with the evidence of his qualifications, refuse to insert the plaintiff's name on their voters list, and did refuse to allow him to vote 3 whereby the plaintiff has been greatly in jured, &c.
    When there are several counts in a declaration for the same cause of action, one only of which is good, and a general verdict is found for the plaintiff, judgment will not be arrested, but the verdict will be applied to the good count.
    Trespass upon the case against the selectmen of Dalton. The declaration contained two counts, for the same cause of action, the first of which was wholly insufficient to support a judgment. At the trial in the court of common pleas, a gen eral verdict was returned for the plaintiff; but that court, on motion of the defendants, ordered the judgment to be arrested, on the ground that the second count, as well as the first, was fatally defective. The plaintiff alleged exceptions to that order of the court.
    The second count in the declaration was in these words: “For that the said defendants, on the 9th of November 1840, at the meeting of the voters of said town of Dalton, for the election of president and vice president of the United States, governor and lieutenant governor of this Commonwealth, member of congress from the seventh district of Massachusetts, state senators and members of the house of representatives, did, as selectmen of said town, presiding over said election, although the plaintiff, before offering his vote, furnished the said defendants with sufficient evidence of his having the legal qualifications of a voter at said meeting, and requested them to insert his name on their list of voters, and although, at their meeting previous to the election, required by statute, to receive evidence of the qualifications of persons claiming a right to vote, the plaintiff had furnished the said defendants with the evidence of his qualifications, refuse to insert the plaintiff’s name on their voters’ list, and did refuse to allow him to vote; whereby the plaintiff has been much injured,” &c.
    
      Rockwell 8f Kellogg, for the plaintiff.
    The second count might perhaps have been held ill on general demurrer, but its defects are cured by the verdict. The court will judicially take notice of public statutes, and the days of the week; 1 Chit. PI. (6th ed.) 246, 249; and will thereby ascertain that the 9th of November 1840 was the second Monday of that month, and that an election of the various officers enumerated in the plaintiff’s count was directed by the constitution and statutes of the Commonwealth to be held on that day.
    The issue which was joined could not have been found for the plaintiff, unless the facts requisite to support the action, and which are omitted or defectively stated in the count, had been proved. No omission or imperfection, which onlv renders the statement of the cause of action defective, is a jeofail after verdict. 6 Dane Ab. 274. 2 Saund. PI. & Ev. 911. Bigelow’s Digest, 591.
    
      Bishop, for the defendants.
    It is not so alleged in the declaration, as to be traversable, that the defendants were selectmen of Dalton, nor that the plaintiff was a legal voter. Nor is it alleged that the election was held on the 2d Monday of November, or on a day prescribed by the constitution or laws; nor that the defendants refused to permit the plaintiff to deposit his vote. The qualifications of the plaintiff, as a voter, are not set forth. By reason of these omissions, and others, no cause of action is shown in the declaration, and the verdict will not sustain a judgment. Gould PI. c. 10, <§>§ 3,13. Bigelow’s Digest, 458.
    There is no town meeting “for the election of president and vice president of the United States,” as the plaintiff’s declaration avers.
   Dewet, J.

The declaration in this case would have been held bad on demurrer, if the defendants had elected to raise the question of its sufficiency in that form. But they forbore to demur to the declaration, and joined issue in fact thereon, taking their chance to get a verdict in their favor; and this presents the question as to the declaration under a different aspect from that of an objection thereto raised by demurrer, and before verdict.

It is a very familiar principle, that faults in pleading are, to some extent, cured by a verdict. The doctrine is well stated by Serjeant Williams, in 1 Saund. 228, a, note, in these words : “ Where there is any defect, imperfection 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 improperly 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 omission, is cured by the verdict.” This is the common law doctrine, long known, .and adopted in practice, as furnishing a salutary and useful rule, requiring vigilance in the party raising objections of this nature, and such as might have been easily obviated by an amendment, if pointed out at an early stage of the proceedings. Although judgment will be arrested even after verdict, if it appear from the declaration that the plaintiff’s title to his action is defective, yet judgment will not be arrested when the defect is not in the title, but in the form of setting it out. Bigelow’s Digest, 458, and cases there cited.

The Rev. Sts. c. 100, $<§> 21-24, are very significant of the views of the legislature as to sustaining exceptions of mere form in legal proceedings; and indeed errors of substance seem to be guarded against by the facilities furnished for obviating them by way of amendment. In view of these provisions and the obvious purpose of legislative enactments, this court refuse to arrest the judgment, or set aside proceedings as irregular, upon a motion filed at a late period in the cause, upon grounds which would have availed the party alleging them, if seasonably interposed ; and this, even in defects in matters which are enjoined by positive law or constitutional requirement. Thus the want of a proper teste to the writ cannot be objected, unless at an early stage. Ripley v. Warren, 2 Pick. 592. So the want of a seal to a writ cannot be alleged in arrest of judgment, after trial by jury. Foot v. Knowles, 4 Met. 386. Objections for matters apparent on the face of the proceedings, and also those defects generally which furnish good ground for matter in abatement, are taken to be waived, if not raised at an early stage of the case. Simonds v. Parker, 1 Met. 508. These cases are alluded to, not as strictly analogous to the case at bar, but as illustrating the course of judicial decisions, in requiring, as fai as possible, all objections to the form of the process or the pleadings to be raised before trial by jury. This course is of great practical importance, and is to be adhered to and applied as far as practicable and consistent with the rules of law.

These principles, just and proper as they are, and to be liberally applied in appropriate cases, do not supersede the right to move in arrest of judgment after verdict; nor will they sustain every declaration that may have been submitted to a jury, and upon which a verdict may have been rendered for the plaintiff. They do, however, obviate objections of form, and they do ghe effect to averments less direct and specific than would be requisite, if a demurrer had been filed.

To entitle the plaintiff to maintain his action, enough must appear in the declaration, or be inferred by legal intendment from the verdict, to embrace the several allegations, that the defendants were the selectmen of Dalton, and, as such, regulated the list of voters, and presided over the balloting, at a 'regular town meeting; that the plaintiff was legally entitled to have his name borne on the list of voters, and that he requested the defendants to insert his name upon said list; that the defendants knew the fact of the plaintiff’s having the legal qualifications, or that, by sufficient evidence, it was shown to them that he was qualified to vote in the election there pending, and that they refused to enter his name on the list. St. 1839, c. 42, § 4. Upon examination of the second count in this declaration, we are satisfied that it does substantially allege these various matters, or so much of them that, with the legal intendment after verdict, and the waiver of formal objections consequent upon joining issue and proceeding to trial, it may be considered as setting forth a sufficient cause of action.

There is one obvious inaccuracy in the second count, upon which some reliance was placed, and which it may be propei to notice. This count, alleging the town meeting to be holden on the 9th day of November 1840, and reciting various public officers to be voted for at that meeting, states, as one purpose of the meeting, that it was “ a meeting of the voters of said town of Dalton, for the election of president and vice president of the United States,” &c. The meeting was, in truth, for the choice of electors of president and vice president of the United States. To this objection it may perhaps be a sufficient answer, that, under our laws, the only mode of electing the president and vice president is by the instrumentality of electors chosen by the people, and that, by the law of Massachusetts, this day was assigned for the choice of such electors, and therefore an allegation that the meeting was holden on that day for the choice of president and vice president must be none other than an allegation that there was a town meeting holden on that day for the choice of electors of president, &c. A further answer, however, results from the fact, that the declaration does also recite that this town meeting was holden for the choice of governor, lieutenant governor, a member of congress, state senators, and a representative to the legislature of Massachusetts; and that the plaintiff was deprived of the right of voting for these various officers. We do not think this objection can avail the defendants, and arrest the judgment. We think the judgment may be well entered upon the verdict, upon the second c6unt in the declaration. It is true that the verdict was a general one; but where there are several counts in a declaration, for one and the same cause of action, some of which are good and others bad, and a general verdict is returned upon all, judgment will not be arrested, but the verdict may be applied to the good counts only. Baker v. Sanderson, 3 Pick. 353. Cornwall v. Gould, 4 Pick. 446.  