The action was continued nisi for the decision of this motion ; and now the opinion of the Court was delivered as follows by
The statute giving the treble damages originally demanded by the plaintiff in a second count, directs that they may be recovered after the same manner of * con- [ * 147 J viction, and by the same rules and methods, as are directed in the provincial statute of 12 Geo. c. 5. Looking into that statute, we find the manner of conviction there described is in cases where the defendant shall be charged in trespass. Trespass is therefore the proper action for recovering the treble damages here de manded, and the defendant’s objection is unsupported.
It is holden in some cases, where there is a misjoinder of action, a verdict of a jury, finding the issue for the defendant on the count misjoined, will not cure the declaration, so that the plaintiff can have judgment on the count, on which a verdict is found for him. Whether this is now law, it is not necessary to determine ; for we are satisfied that when a count is struck out of the declaration by leave of the Court, the declaration must afterwards be considered as if the count struck out had never been introduced. Judgment cannot be arrested.