Ware v. Estabrooks
Supreme Court of Vermont
ThF dfcraration in the case was in three counts; the second count was trover in the usual form. The character of the first and third counts appears from the opinion. Heard on a demurrer to the first and third counts, and on a demurrer to the whole declaration, Caledonia County, June Term, 1900, Taft, C. J., presiding. Demurrers overruled and declaration adjudged sufficient. The defendant excepted and the cause was passed to the Supreme Court before final judgment.
1Opinion of the CourtTyler, J.
This case comes here upon a demurrer to the first and third counts in the declaration, the defendant con*93tending that these counts do not contain the necessary averments to constitute a good declaration in tort.
It is an elementary rule of pleading that every substantive fact which is necessary in law to the maintenance of the suit must be alleged. Gould’s PI., Ch. 3, ss. 2, 166. It is not sufficient to allege that a certain act was fraudulently and deceitfully committed, but such facts must be stated as will give it that character. A declaration in fraud cannot be sustained without appropriate…
2Cases cited2 opinions
- Ide v. GraySupreme Court of Vermont · 1839
- Wright v. BourdonSupreme Court of Vermont · 1878
3Cited by2 opinions
- Smith v. Badlam and AndersonSupreme Court of Vermont · 1940
- Lindsay v. City of NewportSupreme Court of Vermont · 1937