delivered the opinion of the Court. As it sufficiently appears that the evidence applied to one count as well as another, and that they are all for the same cause of action, the plaintiffs have a right to take their judgment upon either count, therefore if either of the counts is good, there is no sufficient cause to arrest the judgment. The parties having applied their arguments principally to the seventh count, we have confined our attention more particularly to that count.

One of the objections to this count relied upon is, that it charges the defendants with having conspired to secrete the tobacco on board the plaintiffs’ vessel, with intent to smuggle the same into a foreign country and avoid the pay*456inent of duties, which intention to smuggle and avoid duties, is no ground of action for the plaintiffs.

The gravamen is, the fraudulent conspiracy, and the actual concealment of goods on board the plaintiffs’ vessel, bound to a foreign country, where the introduction of such goods under such circumstances would expose the vessel to peril and penalties, detention and expense ; and the intended fraud upon the revenue laws of Russia, or some other foreign power, was the means by which the plaintiffs’ property was thus exposed to peril, and subjected to damage. Of itself and independently of its connexion with the plaintiffs’ property, an intended fraud, or an actual fraud upon the revenue laws of Russia, would afford them no cause of action or ground of complaint. It is laid merely by way of inducement to show how the conspiracy and fraud of the defendants tended to injure and did in fact injure the plaintiffs.

Another ground of arrest of judgment insisted on is, that it is not alleged upon what ground, or for what cause, the fine or penalty was imposed &c.

But we think the declaration is sufficiently precise and particular in this respect, to be good after verdict. Many defects which would render a count bad on demurrer, are remedied by a verdict.

The count sets out the conspiracy, the fraudulent intent to conceal the tobacco on board the plaintiffs’ vessel and smuggle the same and avoid the payment of duties, the actual delivery of it on board, the actual concealment, and the arrival of the vessel with the property thus concealed, studiously concealed,-so that the master could not find it after diligent search and, in fact, wa* ignorant of its being on board, at the port of Cronstadt in Russia. It then avers that it was required by the laws of the empire of Russia, that an entry should be made at the custom-house there, of all articles of merchandise on board the vessel, that Flagg and Moore well knew of the existence of such law, but fraudulently and deceitfully neglected to enter the tobacco and cigars, and concealed from the master all knowledge that the tobacco and cigars were on board, so that the same could not be duly entered by the master. Here is a sufficient allegation *457of an actual violation of the laws of Russia, and an actual fraud upon the revenue laws of that country. The count then proceeds to aver, that the fraud so practised by the defendants was afterwards discovered by the custom-house officers of the port of Cronstadt. By this general designation must be understood officers having competent authority to enforce the laws of that country and to perform the executive and judicial functions necessary and proper to carry them into effect. After verdict, it must be presumed, that it was satisfactorily proved that these persons were officers de jure or de facto, exercising these powers.

The count then further avers, that in consequence thereof, that is, of all the proceedings before stated, to wit, the practice of the fraud and the discovery of it, a fine or penalty was imposed upon the master of the vessel. Here, we think, the rule already cited applies, that a defective averment, after verdict, will be helped, upon the known principle, that it must be presumed to have been proved, in that sense that will support the verdict. It is not distinctly averred, that by the act of the seamen the master became liable to a penalty and the vessel to seizure ; but it must have so appeared in proof, otherwise there was no connexion between the fraud of the seamen and the punishment of the master. This is the more natural and probable, as the sense in which the averment must have been understood at the trial is consonant to the laws of almost all commercial countries. Respondeat superior, is a maxim that applies not only to masters of vessels, but to many other cases. The master, upon an obvious principle of policy, is held responsible both for the conduct of the men, and the management of the property, under his control. When therefore the declaration alleges that a fraud was practised on board a vessel, and that it was discovered by officers whose duty it is to execute the law, and that in consequence thereof a fine or penalty was imposed on the master, and the vessel was detained, the inference is irresistible, that the fine was incurred and the detention coca-s'oned by the force and operation of the law, and for the punishment of such fraud. “ Fine ” and “ penalty ” are technical, and must necessarily be understood to be incurred *458by a violation of law. The words, “ in consequence thereof,” apply to and qualify the subsequent clauses in the count. It therefore alleges, that in consequence of the violation of the laws of Russia, and the fraud upon her revenue laws, practised on board the plaintiffs’ vessel, against the will and knowledge of the master, the fine was imposed, the vessel was not allowed to clear out or sail from the port of Cronstadt till the fine was paid, was detained a long time, and the plaintiffs in consequence thereof were put to great expense to procure the liberation of the vessel and obliged to pay a large sum. These are all set out as in fact the necessary consequences of a violation of the laws of Russia. After verdict, it must be presumed that these consequences were proved to have been occasioned by a violation of the laws, and that they were not sums voluntarily paid, but actually paid under legal coercion. Had the fine upon the master been for any personal misconduct or wilful violation of law, it would have laid no ground of claim for the plaintiffs. But when it is said that it was imposed on him merely in respect to his situation of master, and agent for the owners of the vessel, in the proper course of his employment, that their vessel was detained till it was paid, and that they were compelled to pay a large sum of money to procure her liberation, it looks much more like a penalty upon the vessel, and through the property, upon the owners, than a personal penalty upon the master. The question on a motion in arrest of judgment is, whether all the material facts are averred, which are necessary to enable the plaintiff to maintain his action; if they are, although defectively stated, still the judgment will not be arrested, because it would be presumed that these necessary facts were proved at the trial, though such declaration would be bad on demurrer. But if any fact material to the plaintiff’s case is wholly omitted, no such presumption will arise, the defect will not be cured by the verdict, and the judgment will be arrested. Here no material fact is omitted ; the most that can be said is, that the facts are not stated with so much accuracy and precision as they might be ; and we think therefore that this ground of the motion in arrest of judgment is not sustained

*459It is objected that the laws of Russia are not set out with sufficient certainty and particularity. Laws of foreign countries are to be stated and proved as facts, and may be pleaded, traversed, put in issue, like any other facts. The laws of Russia are staled in this count in general terms, and that is sufficient. With the mode in which they were proved, we have nothing to do, upon,,^this motion ; it is to be presumed that they were satisfactorily proved. We can perceive no reason why the law, as thus stated, could not have been traversed. Smith v. Elder, 3 Johns. R. 105.

In regard to the averment of injury to feelings and reputation, as an aggravation of damages, we think it affords no ground for arresting the judgment. In tort, if sufficient cause of action is proved, though not all which is laid in the declaration, the plaintiff is entitled to recover, and the damages will be assessed according to the case proved. After verdict,- therefore, it will be presumed that the damages were assessed according to the case proved. If then circumstances are alleged by way of aggravation of damages, which are not proper to be taken into consideration, such averments will be regarded as surplusage, and it will be presumed that no damages were given on such ground.

Judgment according to verdict.