Barnard v. Whiting

7 Mass. 358

Opinion

By the Court.

The last count is clearly bad. A general count of indebitatus assumpsit, for money had and received, must be for cash ; but here it is for bank bills. Judgment cannot be rendered on this count.

Whitman and J. Richardson for the defendants. Williams and Bigelow for the plaintiff.

But the judge, who sat at the trial, has certified to us that all the counts in the declaration were, in fact, for one and the same cause of action. He might have directed a verdict upon such count as the evidence applied to. And, although he did not do this, the plaintiff may yet amend his verdict, by taking it on either of the counts, upon this certificate of the judge, notwithstanding it is not of the same term.

The verdict was accordingly so amended as to find for the plaintiff upon one count only; and judgment was entered upon it so amended.