
    Harriet B. Harding vs. Henry C. Pratt.
    Suffolk.
    November 15. — 27, 1875.
    Colt, J., absent.
    Where a declaration contains two counts for different causes of action, and the jury are instructed to return a verdict upon both, but return a verdict upon one only and the cause of action set forth in the other count is not determined by further trial, discontinuance or otherwise, the whole case is not finally disposed of, and exceptions to a ruling of the Superior Court cannot be entered in this court.
    Contract upon two counts: the first for moneys expended at the defendant’s request upon premises leased to him by the plaintiff ; and the second for use and occupation. Answer, to the first count, a general denial, and to the second count, payment of a part of the claim and tender of the rest.
    The causes of action set forth in the two counts were separate and distinct, and at the trial in the Superior Court evidence was offered by the plaintiff and by the defendant upon both counts, the part payment set up in the answer to the second count was admitted, and the only question under that count was upon the tender.
    The jury were instructed to return a verdict upon both counts; but returned a verdict for the defendant upon the second count only, and did not agree and brought in no verdict upon the first count.
    The plaintiff moved to set aside the verdict, because it was upon one count alone and did not covey the issues presented to the jury. Allen, J., overruled the motion; and the plaintiff alleged exceptions.
    
      B. W. Harris & P. E. Tucker, for the plaintiff.
    
      J. L. Eldridge, for the defendant.
   Gray, C. J.

A verdict having been rendered upon one only »f the two counts upon which issue had been joined, and the cause of action set forth in the other count not having been determined by further trial, discontinuance or otherwise, the whole case was not finally disposed of in the court below, and these exceptions have been prematurely entered in this court. Safford v. Knight, 117 Mass. 281. Hall v. Briggs, 18 Pick. 503. Sutton v. Dana, 1 Met. 383. Exceptions dismissed.  