
    William Johnson v. Jonathan Mullin.
    If the declaration contains a good count, among defective counts, the court on error will intend that the verdict was well taken, on the good counts, unless the record shows it was rendered upon those defective.
    It should he made appear upon the record, by bill of exceptions, that the evidence was not applicable to the good counts.
    The amount of damages can not be corrected on error, unless the record supply the means.
    The correctness of judicial proceedings -will be presumed, unless the errors appear on their face.
    This was a Writ of Error to the Supreme Court of Hamilton county.
    From the record, it appears that the action was assumpsit. The declaration contained three special counts on a guaranty of a note : one count for money lent and advanced; one for money had and received; and one count for goods sold and delivered. Plea, nonassumpsit.
    
      At the April term, 1843, the cause was tried to a jury, who found, “ that the plaintiff did undertake and promise, in manner and form as the plaintiff hath declared against him, and assess the plaintiff’s damages, by reason of the premises, at the sum of $102.71.”
    A motion being made in arrest of judgment, it was overruled, and judgment rendered upon the verdict. ' .
    * J. Frazer, for plaintiff.
    The execution of the note was not a sufficient consideration, per se, to sustain the guaranty. The act was passed and performed without Mullen’s intervention, or having any interest in it, and no new consideration is averred.
    An agreement to become guarantor, or surety, for another’s engagement, is within the statute ; if it be a guaranty for a subsisting debt or agreement of another person, not only the engagement, but the consideration must appear in the writing. Wain v. Walters, 5 East., 10 ; Rawne v. Hughes, 7 Brown’s P. C. 550 ; Saunders v. Wakefield. 4 Barn, and Aid. 595 ; Jenkins v. Reynolds, 3 Brod. and Bing., 14; Morley v. Bootley, 3 Bing. 107 ; Newberry v. Armstrong, 6 Bing. 201; 3 Kent’s Com. 121.
    It does not appear that Muliln gained, or Johnson was prejudiced, by the contract, as set forth in the first count; and unless that were the case the plaintiff below was not entitled to recover. It was his duty to set out the entire consideration. 6 East. 519 ; 1 Saund. 210; 2 Saund. 136.
    The case of Greene v. Dodge et al. 2 Ohio Rep. 439, is conclusive upon this point. The declaration ought to aver some legal and valid consideration for the promise upon which it is sought to charge the defendants. The mere fact of writing their names upon the note would not subject the defendants. To charge them, it must have been done upon some description of contract with the plaintiff, by which the defendants might gain, or the plaintiff might be prejudiced. And that contract, whatever it was, ought to be substantially set out in the declaration. This is not done; and for that reason, the plaintiff can not recover.
    At a subsequent term, the court say: “ We contravene no decision made in our own courts ; Greene v. Dodge et al. is in no way impugned.” Bright v. Carpenter, 9 Ohio, 141. And in Parker v. Riddle, 11 Ohio 102, the consideration is set out in the declaration.
    Another defect in the first count must prove fatal to the declaration. The sum guaranteed does not appear ever to * have become due. [12 The note, it is alleged, was made on the first day of April, and payment was demanded on the second ; but there is no allegation that it was payable on demand, or one day after date, or at any other period. For aught that appears, the note may not yet have matured. If the principal was never liable to pay it, the guarantor can not now be liable.
    In the last count it is not averred that the judgment against the drawer of the note remains unreversed.
    Where the declaration in a civil suit contains several counts, part bad and part good, and a general verdict thereon, judgment will be arrested. 1 Chit. Pl. 288, and authorities there cited. Nelson v. Ford, 5 Ohio, 478. In Maxfield v. Johnson, 2 Ohio, 208, the decision is made expressly on the ground that the count objected to, sets out a good title, although it is done defectively. The counts now objected to, do not set out a good title, by any means. The consideration, without which there could be no guaranty, is wholly omitted.
    The statutory provision upon this subject is amendatory of the common law, and, to some extent, affords.a remedy where there are good counts, by authorizing the court to render judgment on them, upon striking out the defective ones. Swan’s Stat. 688, see, 6.
    Thomas J, Strait, for defendant.
    The first question that presents itself, is, can the judgment be reversed, because three of the counts are defective, when there yet remains other good counts to support the verdict and judgment ? To settle this question in the negative, I think it necessary only to refer to the 6th section of the act to amend the act entitled “ an act to regulate the practice of the judicial courts,” passed March 9, 1835 ; Swan’s Stat. 688.
    I think it can hardly be contended, that the common counts are not sufficient to sustain the verdict and judgment, in this ease ; for we can not now inquire what the evidence was, as no bill of exceptions has 13] been taken to present it. We can only * look to the record to ascertain whether sufficient there appears to sustain the verdict, or whether any one count in the declaration would have been sufficient in itself to entitle the plaintiff to judgment, suppose it had stood alone, and the evidence, on trial, was applicable thereto.
    Before the statutes, a general verdict, on a declaration with some bad counts, could not be sustained. The courts have always held the reverse in criminal cases.
    Every intendment is made in favor of a verdict; and many defects, that would have been good on demurrer, are cured by verdict. In the case of Maxfield v. Johnson, 2 Ohio, 208, the court say: “After a jury have passed upon a case, every thing is to be presumed, which consistently can be presumed, to sustain their verdict.”
    The court say, further, that “ whatever might have been the opinion of the court upon a demurrer to the declaration, it is too late, after a verdict, to take exceptions to it.”
    When any thing is omitted in the declaration, though it be matter of substance, if it be such as that without proving it at the trial the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment. Tidd’s Practice, 826.
    In a note to the 2 Saunders’ Reports, 228, is the following; “Where there is any defect, imperfection or omission, in any pleading, whether in substance or form, which would have been a fatal objection, upon demurrer, yet if issue joined be such as necessarily required, on trial, proof of the facts so defectively or imperfectly stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, their verdict, such defect, imperfection or omission, is cured by the verdict.
    The difficulty in the defective counts, is, that the contract upon which the guaranty therein stated was made is defectively set out. They do not sufficiently aver the consideration, or the contract of guaranty, yet it is shown that there was a contract of guaranty, and a consideration for the guaranty ; but the manner of setting out the same is so defective as to *make the counts bid on demurrer. Never- [14 theless, no objection is made in that way ; and the contract and consideration must have been proved on trial in such manner as to entitle the plaintiff to a verdict, if correctly set forth, or the court would have charged, and the jury found against him.
    The defective matter was directly in issue, and found in the verdict.
    The law, as laid down in the note, in Saunders, in Tidd’s Practice,, and in Maxfield v. Johnson, 2 Ohio, 208, is applicable, and settles that even those counts are good after verdict.
   Lane, C. J.

The declaration consists of five counts. The first,, second and fifth are upon the guaranty of a note ; the third and fourth are the common counts. After a general verdict, a motion was made-to arrest the judgment, from the insufficiency of the three counts on •the guaranty, which was overruled by the court, and this suit is brought to correct the alleged error.

But a question must be first settled, whether the 142d section of the Practice Act (Swan’s Stat. 688) does not require courts to sustain verdicts, even upon defective counts, where one good one is found among them. It authorizes the court taking the verdict to strike out the bad counts, before or after motions in arrest, to give judgment upon those .good ones, to which the evidence applies ; “ and where sufficient appears t,o sustain the verdict, the judgment shall not be reversed on account of the defective counts.” This last clause relates to the duty of the court on error, for the word “ reverse” is applicable to no other.

A majority of the court find on this record enough appearing to sustain the verdict. They find two counts upon promises well plead, .and the verdict that they were made as set forth ; and they will intend that the damages were computed upon these, unless it appears by the evidence, spread upon the record by a bill of exceptions, that it was not thus applicable. For errors in the amount of damages will not be corrected in error unless the record supply the means, and the court 15] of * error will presume the correctness of the proceedings they are called to inspect, until the errors appear on their face.

Judgment affirmed.

Birchard, Judge,

dissenting. The special counts in this case do not show any consideration for the promises which they set forth, and are, therefore, defective. The common counts are good. The verdict is general, and the judgment sought to be reversed isa general one. At common law, such a judgment would be erroneous ; I think it is so under our statute. The act of the 9th March, 1835, (Swan’s Stat., 688,) is relied upon to sustain it. The words are : “ Whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on account of such defective counts.” If the fact, that a verdict was found for the plaintiff, satisfies the words of the statute, and shows that sufficient appears to sustain that verdie't, then my brethren are correct, and I am in error. But, is that the meaning of the law ? If it is, why did not the Legislature say, iu direct terms, that, in all cases, where the declaration contained one good and some bad counts, and the verdict was for the plaintiff, the judgment should be held good ? Why require that sufficient should appear to sustain the verdict, if they meant that the mere verdict appearing, it should sustain itself? Looking at the mischief to be remedied, and the statute together, it appears to me clear that the object of the Legislature was to save those verdicts only, where the record, independent of the verdict, shows the party entitled to recover upon the good counts. This record shows nothing of the kind. No man can tell from it whether the verdict was right or wrong. It does not appear that the jury were in possession of the slightest evidence to sustain the common counts. Nothing that tends to their support appears.  