Dryden v. Dryden

26 Mass. 546

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1830
• Status: Published

Opinion

Per Curiam.

The judgment in this case must be reversed. The first count in the declaration is clearly bad in substance, (and would be so adjudged on demurrer or motion in arrest of judgment,) inasmuch as it does not allege any breach of the contract set forth. The damages after a default are general, and without looking into the papers filed, to see how the damages were in fact assessed, there is no legal ground to presume that they were not assessed on this count. The rule is well settled in case of a verdict, and general damages, when one count is bad in substance, that the judgment must be reversed, except where it can be amended, by the certificate of the judge, so as to show that the damages were assessed on the good counts alone. The same reasons apply with even more force in case of general damages on a default; and the case of Hemmenway v. Hickes, 4 Pick. 497, is an authority directly in point.

Judgment reversed.