Barber v. Whitney

Caton, C. J. This declaration contained special and the . common counts in the usual form. To this declaration the defendant filed a general demurrer, which the court overruled, and very properly. Even if the special counts were faulty, the common counts were undoubtedly good, and as the demurrer was to the whole declaration, there was nothing which the court could properly do but overrule it. Nor was there any error in having the damages assessed by a jury. Indeed, it might have been a fatal error had the court done otherwise, for it could not be known but that there would be evidence admissible alone under the common counts, upon which the court could not properly order the clerk to assess the damages. We find no semblance of error in this record, and must affirm the judgment. Judgment afirmed.