Peabody v. Kinsley , 40 N.H. 416 ( 1860 )

ÍTesmith, J.

In this case the defendant, after verdict, moved in arrest of judgment for misjoinder of counts in the plaintiff’s declaration. It is a well settled elementary principle of the common law, that such causes or rights of action, existing between the same parties, as will admit of the same general issue, may be joined in the same declaration ; 2 Saund. PI. 117, note 2; Gould PL 212; Com. Dig., Action, G., 4; hence the joinder of causes of action, or of'counts, which the law does not allow to be joined, is fatal to the declaration, not only on demurrer, but on motion in arrest of judgment after verdict, or on writ of error; for the joinder might, if sanctioned, require two final judgments, of different kinds, in the same action, whereas the law allows but one such judgment in any civil action. Gould Pl. 219. The case of Crooker v. Willard, 28 N. H. 134, is in point, where a declaration of this kind was adjudged had on demurrer. See also Mahurin v. Harding, 28 N. H. 128. In this ease issue was joined on the plea of non-assumpsit, and a general verdict was rendered for the plaintiff. In general, where one count in a declaration is good, and another substantially ill, if the jury, upon a plea to the whole declaration, or upon a default, find a general verdict for the plaintiff, with entire damages, the defendant may cause the judgment to he arrested; for it is impossible for the court, judging as it must from the record alone, to discover on which count the damages were assessed, or what proportion of them may have been assessed on the one count or the other; and the jury, as the law presumes, are as likely to have assessed them on a bad count as on a good one. Gould Pl. 523; 1 T. R. 151, 508; 2 Saund. 171, b, note 1; 1 Caines 347; 2 Mass. 53, 408; 5 Gr. 446; 9 Pick. 547. Where the declaration contains a good and a bad count, and a general verdict is rendered for the plaintiffj with entire damages, if it appear from the notes of the judge before whom the trial was had that no part of the evidence exhibited to the jury applied to the bad count, then the verdict may be amended by order of the court, so as to apply to the good count only; after which amendment the court will give judgment in pursuance of the verdict on such count only. For, as the verdict stands after amendment, it then appears from the record itself that the damages were assessed only on the good count. But as the case now stands, no intendment can be inferred favorable to the verdict, and, therefore,

Judgment must be arrested.