Semmes v. Lee

21 F. Cas. 1057, 3 D.C. 439, 3 Cranch 439

Opinion

The Couet (nem. con.) was of opinion that it did not support the count upon insimul computasset, but that it was evidence upon the count for goods sold and delivered, so far as it consisted of charges of that kind; and also (Ceanch, C. J., contra,) that it was evidence upon the first count for matters properly chargeable in account.

CRanch, C. J.,

was of opinion that no evidence could be admitted upon the.first count, because it was an imperfect count, — the matters chargeable in account not being in any manner specified, — no account having been exhibited with the declaration; and that it was not competent for the plaintiff to supply the defect after the jury was sworn.

Moesell, J., was of opinion that the objection to the first count came too late. It ought to have been taken advantage of by demurrer ; and that the plea of non assumpsit, being general to all the counts, the objection was to be considered as waived ; and that it was competent to the plaintiff to give, under that count, evidence of any matter properly chargeable in an account. And that to the objection of surprise, for want of notice, it was a sufficient answer to say, that the account now offered in evidence was delivered to the defendant, and remained some time in his possession.

Verdict for the plaintiff. A motion for a new trial was made and overruled; the Court being of opinion that substantial justice had been done.