Small v. Rogers

Bartlett, J. It is unnecessary to examine the objection made to the second count, for no exception is taken to the fifth count, to which it appears that all the plaintiff’s evidence was applicable and on which only the plaintiff claimed to recover; and it would seem that all the counts were for the same cause of action. The record and verdict may therefore be amended so that the latter may apply only to the fifth count, and as the order of the court at the trial term was equivalent to this, 1 Chit. Pl. 411, Story Pl. 62, Barnard v. Whiting, 7 Mass. 358, Sullivan v. Holker, 15 Mass. 377, Patten v. Gurney, 17 Mass. 187, Chamberlain v. Crane, 4 N. H. 116, Cornwall v. Gould, 4 Pick. 446, Richards v. Farnham, 13 Pick. 455, Payson v. Whitcomb, 15 Pick. 215, Worster v. Bridge, 16 Pick. 550, Parker v. Brown, 15 N. H. 189, there must be judgment for the plaintiff on the verdict upon the fifth count of the declaration.