Hatch v. Adams

8 Cow. 35

Opinion

* Curia, per Sutherland, J.

The contract should have been declared on as an alternative one in a single count, the plaintiff averring his election to have boarded himself or to have.been boarded. (1 Chit. Pl. 302; 2 East, 2 ; 2 B. & P. 119, note a ; 3 T. R. 531; 8 East, 8; 18 John. 455.)

But the plaintiff contends the evidence entitled him to recover under the common count. It is a sufficient answer, to say that his evidence was offered under the special counts, as the bill of .exceptions states. He did not claim on the trial that it applied to the common count. It was impliedly admitted by him, that if there was a fatal variance, he ought to be non-suited.

Judgment affirmed.,