If the omission in the complaint was a defect, it was cured by the verdict: the Court below would not have suffered the question of damages to go to the jury, unless it appeared by the evidence that defendant was not protected by the 1st section of the act. But it was not necessary for plaintiffs to show affirmatively that defendant did not come within the exception of the amended act. After denying defendant's license, it was for him to show a license, or that he ran his ferry for his own or his family's use.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
The declaration in this case is too defective to sustain the judgment. It should have alleged that the defendant ran his ferry for fee or reward, or the promise or expectation of it, or that he ran it for other than his own personal use, or that of his family. Such are the only events in which the statute does not give to the owner of a licensed ferry protection against the infringement of his franchise.
The general demurrer to the declaration was properly taken, and ought to have been sustained by the District Court.
The judgment is reversed, and the case remanded.