Sullivan v. Holker ( 1819 )

Parker, C. J.

The Court being all of opinion that the first count is good, and that the evidence given was sufficient to support it; and also that the promise made to the present plaintiff was sufficient to avoid the statute of limitations, which is pleaded against it, — there is no necessity for investigating the merits of the second and third counts. For, although the verdict is general, and, therefore, if one of the counts is bad, judgment must be arrested, — unless the verdict can be restricted in its application,—yet it is well * settled that, in such cases, the plaintiff may elect his count, and have the verdict made applicable to that,

only ; provided the judge will certify, or slate, that the evidence was proper to maintain the good count, and that there was no evidence but what might be properly applied to it. ^(a)

The objections made to the second and third counts are merely technical. But we are not satisfied that they have been sufficiently answered. It is said the second count is bad because it alleges a promise made to the former administrators, between whom and the plaintiff there is no privity ; and that the third is bad because the accounting with, or indebtedness to, the former administrators is no consideration to support the promise alleged, in this count, to be made to the plaintiff. For the reason before stated, we give no opinion upon the sufficiency of these counts.

Some time after the foregoing decision, the Chief Justice observed that the counsel for the plaintiff had referred the Court to the case of Hirst, Adm. de bonis non, vs. Smith, 7 D. & E. 182, in which it was decided that a count like the second in the present case is good, and also that a count like the third is good and sufficient; and his honor observed that, if the Court had seen that case seasonably, no doubt would have been entertained.

Judgment on the verdict.

(a) 1 Dougl. 376. — 2 Dougl. 746. — 3 Bingh. 334. — 1 B. & P. 329.—1 B. & A. 161.—8 East, 357.—2 Arch. C. P. 285 —Barnes vs. Hurd, 11 Mass. Rep. 58.— Barnard vs. Whiting, 7 Mass. Rep. 358.—Patten & Al. vs. Gurney, 17 Mass. Rep 182. — Clark vs. Lamb, 6 Pick. 512.