Borst v. Spelman

Headnote

Where one of the counts in plaintiffs’ declaration is substantially bad, and is virtually abandoned, and the evidence offered and received on the hearing is applicable only to the remaining counts, and the referees report in favor of the plaintiffs generally; judgment (on motion) will be arrested, unless plaintiff shall move and procure an order at special term to amend the report of the referees, so as to make it applicable to the counts under which the evidence is received.

Such order to amend may be granted on payment of costs of motion in arrest, and costs of opposing motion at special term.

Motion by plaintiffs to amend the report of referees, so as to make it applicable to the first and third counts exclusively of plaintiffs’ declaration.

■'■This cause was an action of assumpsit, and was eferred to three referees: the referees reported there-n generally in favor of the plaintiffs, for $2251.79. There

were three counts in the plaintiffs’ declaration; and on the ground that the second count was substantially bad, the defendants moved in arrest of judgment at the last May term of this court; and on the argument of that motion, the court ordered that the judgment be arrested, unless the plaintiff at this special term moved for and obtained an order amending the rep’ort, so as to make it applicable to the first and third counts; and this motion was founded on affidavits and the certificate of the referees, showing that all the evidence of the plaintiffs was applicable to the first and third counts. It appeared from defendants’ papers that they never heard or understood, on the hearing of the cause, that the second count in plaintiffs’ declaration was abandoned, but that the evidence offered and. received upon the reference was under all the counts in the declaration.