Fogg v. Fogg ( 1801 )

The counts laid in the declaration are incompatible with the account exhibited in the cause as the foundation of the action. Any proof, therefore, which went to support the items of the said account were not pertinent to the issue, and should have been disregarded by the court. Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came for new proceedings to be had therein, to commence from the writ, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.