| Vt. | Mar 15, 1846
The opinion of the court was delivered by
After a verdict for the plaintiff the defendant moved in arrest of judgment. The motion was overruled in the county court, — to which the defendant excepts. Several exceptions have been taken to the declaration ; but one of which, however, has been much relied on, — namely, misjoinder.
1. The allegation, in each count, that the defendant thereby became indebted for so much money had and received, was entirely unnecessary and may be rejected as surplusage. The declaration was perfect without that allegation, as a declaration upon a warranty; and, inasmuch as the declaration on the warranty was good, if the other part had been faulty, the verdict would have cured any such defects.
3. The objection on the ground of misjoinder would have been fatal, if, as the defendant has contended, the second count is in case. Both counts, however, are in assumpsit, — one on an absolute, the other on a limited, warranty. When I first saw a declaration, similar to the second count in this declaration, several years since, it appeared to me singular, as the party was warranting against his own deceit. I found, however, a form similar to it in Wentworth’s Pleadings, under the class of special assumpsit. But in the case of Wood v. Smith, 4 C. & P. 45, [19 E. C. L. 267,] it was expressly decided, that a declaration like this, in assumpsit, was good; and when that case came up before the King’s Bench, Parke, J., said he had frequently seen such counts as this. The authority of that case is decisive as to this objection.
This is the only objection to the proceedings of the county court, which has been seriously urged. The other objection taken, the amended counts not concluding with an ad damnum, is untenable, as the amended declaration must be considered as referring to the original declaration, where the ad damnum was set forth.
The judgment of the county court is affirmed.