
    John M. Small v. John P. Rogers.
    Where all the counts in a declaration are for the same cause of action, and a general verdict is rendered for the plaintiff; though some of the counts are defective, the verdict may be applied to one of the good counts, if all the evidence was applicable to that count and the plaintiff during the trial claimed to recover on that count only.
    Assumpsit, upon a Warranty of a colt which the plaintiff received from the defendant in exchange for a reed organ.
    
      oThe second count was — "And whereas afterwards, to wit, on the day and year aforesaid, at Colebrook aforesaid, in consideration that the said plaintiff at the like special instance and request of the said defendant, had then and there delivered to the said defendant a certain other parlor reed organ of great value in exchange for a certain other two years old mare colt of the said defendant, he the said defendant then and.there undertook, and then and there faithfully promised the said plaintiff that the said last mentioned two years old mare colt at the time of said last mentioned exchange, was not sick,” etc.
    After a general verdict for the plaintiff the defendant moved in arrest of judgment, on the ground that in the second count a past consideration for the promise was alleged.
    The testimony of the plaintiff, if true, sustained the fifth count, and his counsel in his closing argument claimed only to recover on that count, and, when the motion in arrest was made, moved for judgment on that count. The court overruled the motion in arrest, and granted the plaintiff’s motion if it should be determined at the law term that it was necessary to grant it in order to sustain the verdict, and that it could be done, and the defendant excepted.
    
      Ladd & Ray, for defendant.
    
      Ramsay ó Barlcer, for plaintiff.
   Bartlett, J.

It is unnecessary to examine the objection made to the second count, for no exception is taken to the fifth count, to which it appears that all the plaintiff’s evidence was applicable and on which only the plaintiff claimed to recover; and it would seem that all the counts were for the same cause of action. The record and verdict may therefore be amended so that the latter may apply only to the fifth count, and as the order of the court at the trial term was equivalent to this, 1 Chit. Pl. 411, Story Pl. 62, Barnard v. Whiting, 7 Mass. 358, Sullivan v. Holker, 15 Mass. 377, Patten v. Gurney, 17 Mass. 187, Chamberlain v. Crane, 4 N. H. 116, Cornwall v. Gould, 4 Pick. 446, Richards v. Farnham, 13 Pick. 455, Payson v. Whitcomb, 15 Pick. 215, Worster v. Bridge, 16 Pick. 550, Parker v. Brown, 15 N. H. 189, there must be judgment for the plaintiff on the verdict upon the fifth count of the declaration.  