Sayre v. Jewett

12 Wend. 135

Opinion

By the Court,

Nelson, J.

The third count is bad, and the better opinion appears to be, that the defect in it is not cured by the verdict, and that the defendant in a case like this, is entitled to have the judgment arrested. Cro. Jac. 126. 2 Str. 934. 1 Saund. 242, n. 3. 2 Chitty’s Pl. 263, n. 7 Johns. R. 359. But there can be no objection on the judge’s certificate to amend the verdict so as to apply it to the second count, which is unexceptionable. According to the certificate, the evidence applied as well to the second as to the third count, and in such cases it is the settled practice of this court to permit the amendment on payment of the costs of the motion in arrest. Union Turnpike Company v. Jenkins, 1 Caines, 392. 15 Johns. R. 318. 1 id. 505.

Footnotes

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It will be observed that as long since as 1803, when the case of the Union Turnpike Company v. Jenkins, above referred to, was decided, this court not only concurred with Lord Mansfield, in condemning the ancient rule upon this subject as when he said in Grant v. Astle, Dougl. 729, “ I have exceedingly lamented that ever so inconvenient and ill-founded a rule should have been established, as that where there are several counts, entire damages, and one count is bad and the other not, this shall be fatalbut abrogated it, by allowing an amendment of the verdict, where the judge before whom the cause was tried certified that “all the evidence given would properly apply to the good count as well as to the others.” In respect to allowing an amendment of the verdict in a case like this, this court therefore differs from the King’s Pench in England, for the rule there is, that if there is any evidence which applies to the had count, the postea cannot be amended, because as Buller, J., said in Eddowes v. Hopkins, Dougl. 377, it would be impossible for the judge to say on which of the counts the jury had assessed the damages, or how they had apportioned themand per Lawrence, J., in Holt v. Scholefield, 6 T. R. 695, “the plaintiff ought not to be at liberty to amend by the judge’s notes in this cade, because the evidence applied as well to the dad as to the good counts.*’