Baker v. Baker

Decided October 15, 1847

Massachusetts Supreme Judicial Court · decided 1847-10-15

Trespass for taking and carrying away goods. At the irial in the court of common pleas, before Washburn. J. the plaintiff offered evidence of the value of the goods alleged, in the declaration, to have been taken by the defendant. To the admission of this evidence the defendant objected, because there was no averment in the declaration that the goods were of any value.

Relies on Whipple v. Foot

Decided 1847-10-15

Shaw, C. J.

¶1In trespass de bonis asportatis, an averment of the value of the articles carried away is not a material averment. The omission of it is a defect of form, which can be taken advantage of by special demurrer only. The defect is cured by pleading in chief and by the verdict. Com. Dig. Pleader, 3 M. 1, 8. Newcomb v. Ramer, 2 Johns. 421, note. Usher v. Bushell, 1 Sid. 39.

¶2The case of Hope v. Commonwealth, 9 Met. 134, which was an indictment for larceny, where the value is material both to the jurisdiction and the judgment, bears no analogy to the present case. Proceedings in criminal cases are governed by different rules.

¶3The defect of form in the declaration afforded no ground of exception to the admission of the evidence.

¶4Exceptions overruled.