By the Court,
Pratt, J.The only question presented by this case, for the opinion of this Court, is, whether the Court below erred in charging the jury “that if they believed the contract between the parties to have been as testified to by the' witness, Price, the plaintiff could not recover under the common counts, either for the amount of his expenses back to New York, or for the balance of the year’s services, but that he might recover therefor under the special count in his declaration.” In’settling this question, it will be necessary to review, briefly, the pleadings in the case.
*463It is a general rule, which has been long well established, and acted upon, that pleadings in Justice’s Courts should be regarded and reviewed with great liberality; that legal technicalities should be discountenanced, and that substance, instead of form, should be required. In this legal rule, there is sound reason and justice combined, for it is by law pre-supposed, that suits in these Courts will be conducted by the parties themselves, instead of being commenced and prosecuted throughout by professional men, who make the law, and the science of pleading, their study and practice. Hence the provision of the statute, that “ pleadings in a suit before a Justice of the Peace, may be either written or verbal, &c. When written, they shall be filed, and remain with the Justice; when verbal, the Justice shall enter on his docket the substance thereof.” (R. S. 39, § 445.).
The declaration in the case before us was verbal, and the Justice, undoubtedly, entered in his docket what he deemed to be the substance thereof, although it is not probable that in doing so, he used the precise language of the plaintiff; nor was that necessary. The substance of the declaration, as returned by the Justice, is, firstly, “ for work and labor done, and services rendered for the defendants, and at their request, under a special contract;” secondly, “ for a breach of contract,” and thirdly, “ upon the common counts, and claims damages, &c.”
The first count in this declaration contains the gravamen of a good count in form, and is sufficient in matter of substance, and as a brief statement of the plaintiff’s cause of action, for work and labor. But the second count, when considered separately, as a distinct declaration in the cause, and tested'by the rules of pleading, is beyond all controversy, defective. It is not only deficient in matter of substance, but it is entirely vague and uncertain for want of specification.
The real object of a pleading in any Court, is, to apprize the opposite party of the nature and grounds of the action, *464or the defence, as the case may be, so that there shall be neither misapprehension nor surprise on the trial, as to what matters are to be litigated. But the insufficiency of a pleading, either for want of substance or sufficient specification, may be waived by the party to be affected by it, and when so waived, and the cause has been fairly tried, without objection, on the merits, the party, by every principle of justice, should be, in judgment of law, concluded by the trial.
If the defendants in the present case, were not sufficiently apprized of the nature and ground of the cause of action claimed by the plaintiff under the second count, to be willing to join issue thereon and go to trial on the merits, they should have demurred, or demanded a more full and particular statement thereof, before pleading to the merits. The Justice, on such demand being made, would have ordered the plaintiff to be more explicit, to state fully the substantial particulars of his cause of action, and would have turned him with his cause of action out of Court, in case he had refused to comply with such order. Justices of the Peace are, by law, invested with full power and authority on this subject, and it is their duty to exercise it whenever it becomes necessary for the protection of the legal rights of a party. But the defendants neither demurred nor demanded a more explicit statement of the cause of action. On the contary, they voluntarily plead issuabl/y to the whole declaration, and went to trial on the merits.
And on the trial they interposed no objection to the reception of the evidence under the second count. They should, therefore, upon principle, be considered in law as having voluntarily waived all right of objection to the declaration, on the ground of its insufficiency, either for want of substance or specification.
If the defendants had been in fact surprised on the trial, by the evidence adduced under the special count, they would most undoubtedly have objected to its reception, and thus rais*465ed the question of its insufficiency. In such case, the Court, if deeming it necessary, might have allowed the plaintiff to amend, on such terms as would have protected the rights of the respective parties. The presumption, however, is that, they were not surprised by the introduction of the evidence,, as they went to trial prepared with witnesses to contest the-, cause of action, claimed by the plaintiff under it. There is,, therefore, no ground upon which a presumption can for a, moment rest, that the defendants were misled by the second count in the declaration, or that they were not, at the time of joining issue thereon, fully aware of the nature and grounds, of the plaintiff’s entire cause of action. They have already-twice tried this cause upon the merits, without objection, either to the declaration or to the reception of evidence under it; and in view of the course which they have voluntarily pursued in the cause, they should be estopped from raising, now, any question touching the insufficiency of the; plaintiff’s declaration. It would be unjust and oppressive towards the plaintiff to set aside his verdict, and. grant the defendants another trial upon the merits on such unreal technical ground.
The presumption in law is, that the entire controversy between the parties has been fairly tried by the jury, on its merits; but whether it has been so tried or not, can make no difference with the decision to be made on the question presented by the case here. There are no errors in law appearing in the case, and this Court cannot legally review it, on the facts.
Let it be certified to the Circuit Court for the county of "Wayne, as the opinion of this Court, that the charge of the. said Circuit Court to the jury was correct, and the defendants are not entitled to a new trial.