Allen v. Addington

Headnote

After a general verdict upon two counts, one good and the other bad, and after a reversal of the judgment for such cause, the postea will be suffered to be amended so as to have the verdict entered upon the good count only, where it appears that the evidence applied as well to the good as to the bad count, and both counts are founded upon one and the same cause of action» and not upon separate and distinct causes of action.

This was an action on the case for a false representation as to the credit of a third person. The plaintiff obtained a verdict, on which he entered judgment in this court. The defendant , sued out a writ of error, removing the record into the court for the correction of errors, which court reversed the judgment of this court, but resolved that the third count in the declaration was sufficient after verdict to sustain a judgment, and directed the record to be remitted to this court, with liberty to the plaintiff to apply here to amend the^osiea, either by the notes of the circuit judge, or by the evidence set forth in the bill of exceptions, so as to apply the verdict to the third count, and to render judgment thereon. The first count was unsupported by proof; the second and third counts were substantially for the same cause of action, except that in the second count it was omitted to be stated that the false representation was made, or the truth suppressed, with an intention to deceive and defraud the plaintiff; and for this cause the verdict being general, the judgment it seems was reversed. See 11 Wendell, 374, &c. The plaintiff now moved to amend the postea, under the permission granted by the court for the correction of errors.

insisted that where the evidence is as applicable to a good as to a bad count, the postea will be amended so that the verdict shall apply to the good count only ; and cited, in support of this position, 1 Caines,. 392 ; 2 Johns. Cas. 21 ; 1 Johns. R. 505; 11 id. 98 ; 15 id. 318. He adverted to the English cases on this question, and shewed that the unreasonableness of the rule prevailing there

had been long since acknowledged, but that whatever might be the practice there, with us the law was settled, that in cases of this kind an amendment was always allowed.

Where there is any evidence which applies to a bad count, the postea cannot be amended, because, as Buller, J. said in Eddowes v. Hopkins, Doug. 377. “ it would be impossible for the judge to say on which of the counts the jury had assessed the damages, or how they had apportioned them. ” So in Holt v. Scholefield, 6 T. R. 695, Mr. Justice Lawrence said, “ the plaintiff ought not to be at liberty to amend by the judge’s notes, because the evidence applied as well to the bad as to the good counts. In Grant v. Astle, Dougl. 730, which was on a writ of error Irom the common pleas, Lord Mansfield admitted, that after judgment an amendment by the judge’s notes was inadmissible ; and it was conceded that all that could be done in that case, which was a verdict on a bad and good count, was to send the cause back, to have the damages applied on the good count; and a venire de novo was accordingly awarded. The same course was adopted in Garr v. Gomel, 9 Wendell, 679; and he insisted that, after a judgment had been reversed, because a general verdict had been given on counts, some good and some bad, a postea had never been amended, and cited 1 Barn. & Aid. 161, in which the K. B. refused such an application as unheard of, saying that it was altogether too late after a plaintiff had insisted upon his verdict, until the judgment of a court of errors.