
    
      Spann and Wife v. Ralph Perry.
    
    Misjoinder of counts, and general verdict for the plaintiff: on motion in arrest i of judgment, the verdict was supported on those counts to which the evidence applied, and the plaintiff had leave to strike out the others.
    
      Before Frost, J. at Qillisonville, Spring Term, 1848.
    This was an action on three promissory notes, for several different sums, of which the first was dated the 28th May, 1845, and the other two the 28th June, in the same year. They were each made payable one year after date, and to Mrs. Caroline Spann, the wife of the plaintiff.
    Mr. Edmund Rhett proved that the original notes had been destroyed by fire, when his office was burnt. The particulars of the notes he obtained from memoranda he had taken, and from the proceedings in a Chancery suit. ,
    The only objection fnade at the time was. that the notes were not declared on as lost or destroyed, but after the declaration was read, this objection was abandoned.
    A verdict was found for the plaintiffs, and the defendant moved in arrest of judgment,
    
      1st, Because the plaintiffs are properly joined in the counts on the several notes, and improperly joined in the count for money lent and advanced by them to the defendant.
    2d. Because a count upon a cause of action, which cause. of action accrued to husband and wife, cannot be joined in the same declaration with a count upon a cause of action which accrued to the husband alone.
    3d. Because the count for money lent and advanced by the plaintiffs to the defendant, is, in effect, a count for money lent and advanced by the husband alone, and cannot be joined with a count in which the wife is the meritorious cause of action, and is joined in the suit.
    
      R. De Treville, for the motion.
    
      E. Rhett, contra.
    COPIES OF DECLARATION AND VERDICT.
    STATE OF SOUTH CAROLINA, Beaufort District. ( to wit:
    
    Ralph Perry was attached to answer to Timothy H. Spann and Caroline B. Spann, his wife, in a plea of trespass on the case, and so forth :
    Whereupon, the said plaintiffs, by E. and H. Rhett, their attorneys, complain — for that the said defendant, at Gillison-ville, in the district and State aforesaid, on the 28th day of May, in the year of our Lord one thousand eight hundred and forty-five, by his certain promissory note of that date, by him subscribed, for value received, promised the plaintiff, Caroline B. Spann, to pay her the sum of one hundred and ninety-two dollars, in twelve months after date, with lawful interest thereupon from date; and for that the said defendant, at Gillisonvilie aforesaid, on the twenty-eighth day of June, in the year of our Lord one thousand eight hundred and forty-five, by his other certain promissory note of that date, by him subscribed, for value received, promised the plaintiff, Caroline B. Spann, to pay her the sum of one hundred and fifty-nine dollars in twelve months after date, with lawful interest thereupon from date. And for that the said defendant, at Gillisonvilie aforesaid, on the twenty-eighth day day of June, in the year of our Lord one thousand eight hundred and forty-five, by his other certain promissory note of that date, by him subscribed, for value received, promised the plaintiff, Caroline B. Spann, to pay her the sum of six hundred and seventy-seven dollars in twelve months after date, with lawful interest thereupon from date. By reason whereof, the said defendant became liable, and promised the said plaintiffs to pay them the said several sums of money in the said notes specified, according to the tenor and effect of said notes. And the said plaintiffs aver that the said several notos have been destroyed by fire ; and the said plaintiffs aver that the said several twelve months succeeding the dates of the said notes have elapsed ; and for that the said' defendant, on the said several days and times aforesaid, was indebted to the said plaintiffs in the further sums of one hundred and ninety-two dollars, one hundred and fifty-nine dollars, and six hundred and seventy-six dollars, of like lawful money, with interest as aforesaid, for so much money before that time lent and advanced to the said defendant, at his special instance and request; and being so indebted, he, the said defendant, in consideration thereof, afterwards, on the days and times aforesaid, at Gillisonville aforesaid, undertook and there and then faithfully promised the said plaintiff's, to pay them the said several sums of money, with interest as aforesaid, whenever he should be thereunto requested: yet though requested, the said defendant hath never paid to the said plaintiffs, or either of them, the said several suras of money, or any part thereof, but refuses so to do; to the damage of the plaintiffs two thousand and fifty-six dollars, and therefore they bring their suit.
    2 Hill, 654.
    2 Bay, 439.
    2 Bay, 162.
    1 Strob. 112.
    E. & H. Rhett, Plff’s Att’ys.
    
      Plea — general issue, Treville, Def’ts Att’ys.
    
      Similiter — By E. & H. Rhett, Plff’s Att’ys.
    
      Verdict. — We find for the plaintiff the sum of one thousand two hundred and forty dollars and five cents, with interest upon one thousand one hundred dollars and twenty-six cents, from the 17th April, 1848.
    W. Williams, Foreman.
   Frost, J.

delived the opinion of the Court.

In Pratt and Moore v. Thomas, a count on a bill of exchange, clearly bad, ivas joined with a count in indebitatus assumpsit, which was good; and it was affirmed as the established rule in our Courts, that when the verdict is general, the judgment will not be arrested if any one. count is good. To the same effect is Neilson v. Emerson. Newbiggin v. Pillans was a case of misjoinder of counts, and a general verdict was supported on the counts to which the evidence applied. Lee and Wife v. Chambers was also a case of misjoinder of counts. A general verdict was rendered for the plaintiff, in which damages on the several counts were collectively assessed. On a motion in arrest of judgment, the verdict was substantially amended by permitting the plaintiff to strike out all the counts except one, and to enter judgment for the damages which, according to the bill of particulars and evidence, had been found by the jury on the remaining count. And this is conformable to the practice in Westminster. The distinction between the case of a joinder of good and defective counts, and a misjoinder of counts, is recognised only when the objection is made by demurer. In the former case, t^e C0Un{S be substantially framed in the same form of action, a. general demurrer to the whole declaration could not pe SUpp01.te(j . pm the plaintiff would have judgment on those counts which are good. But if the ground of demurrer be misjoinder, the defendant must demur to the whole declaration, and the plaintiff cannot aid the mistake hy entering a Nolle prosequi, so as to prevent the operation of the demurrer for misjoinder. But a misjoinder may be aided after verdict, by taking separate damages, or by entering a remititur damna. If the verdict be taken generally, it may amended, according to the evidence, by the Judge’s notes.

1 °619 Rep’

l Chit. Plead, 205. ’ i Chit. Pi.

206. 1 Hyiof Ia°k’

l Chit pi 206. ' l Tidd’s Pr. 7i3,2d d°. 9 19 9‘

Sims^rltrob H5. '

Debruhl Neuffer," i Strob. 426.

By the Judge’s notes of the evidence in this case, it appears that no evidence whatever was offered on the counts in inde-bitatus assumpsit. Instead of amending the verdict by re-striding the finding of the jury to the counts on the notes, the same result will be as conveniently effected by pursuing the practice in Lee and Wife v. Chambers ; and the plaintiff has leave to strike out the counts in indebitatus assumpsit.

The objection to the verdict cannot strictly be made or considered, not having been taken as a ground of appeal; and is only noticed to be explained. When, as in this case, a note or other obligation stipulates for the payment of a certain sum at a day stated, together with interest from the date, the aggregate of the principal and interest becomes an interest bearing demand from the day stipulated for the payment- The verdict was then properly rendered for interest not merely on the principal sum of the notes, but on the aggregate of the principal and of the year’s interest which was payable when the notes were payable. This aggregate, if it varies at all from one thousand one hundred dollars, willnot, on emulation, be found to differ more than a few cents.

The motion is dismissed,

O’Neall, J. — Evans, J. — Wardlaw, J. — and Withers, J. — concurred.

Motion refused.  