
    Norris against Durham.
    UTICA,
    August, 1828
    A motion ir menf muíffe noticed for some days within the four first days of the term next after the trial. If noticed for a day after that, it comes too late, and cannot he heard.
    A motion in arrest was made, on the ground that the 4th count of the decb assumpsit was defective in not stating any promise which was true as to the c< declaration served; but the draft of the declaration, and the nisi prim record cont' ■clause. The motion was denied as coming too late; but the court said, if in season, they would have allowed an amendment.
    
      Assumpsit, tried at the Madison circuit, March, 1827, before Williams, C. Judge.
    
      Where one of several counts is bad, and the verdict general, judgment will be arrested, unless it be amendable by the judge’s notes, so as to apply the verdict to the good counts. This may be done on hearing the motion.
    In assumpsit, where the plaintiff declares in several counts, he cannot be compelled on the trial to elect which count he will proceed upon.
    Where the declaration contains counts upon a special contract unexecuted) which is proved, and an extension or alteration of the contract is shown, the plaintiff cannot recover at all, because of variance.
    Four counts were on a special contract to carry, and the 5th against the defendant as a common carrier. The special contract to carry being proved, and evidence given to vary the terms of it, heldx the jury should be charged that if they believed the parties had varied the terms of it, they should find for the defendant; for he would not be liable as a common carrier, but only on the special contract.
    ^ec^ara^on contained four special counts on an assumpsit by the defendant to transport boards on the canal to Albany within a certain time, which he neglected to do. The 5th count was the ordinary one in assumpsit, against the defendant as a common carrier.
    The proof at the trial was, that the defendant engaged, in writing, to convey the boards within a certain time; but was prevented, and" the boards were detained by the freezing of the canal.
    The defendant moved for a nonsuit, on the ground of a variance between the contracts stated in the several counts, and the one proved. The motion was overruled.
    The defendant then moved that the plaintiff be compelled to elect which count in his declaration he would rely upon. This motion was also overruled.
    The defendant then gave proof calculated to show that the time of transportation in the special contract set out in the declaration and" proved in evidence was, subsequent to *the first contract, enlarged by parol, on condition that the freezing of the canal should prevent the transportation within the time mentioned in the original contract.
    The judge charged, that if the jury found the extension of the time, then the defendant was liable as a common carrier under the 4th count, and the question would be one of diligence.
    Verdict for the plaintiff.
    In the copy of the declaration served on the defendant, no promise was laid in the 4th count.
    At the last February term.
    
      
      S. L. Edwards moved in arrest of judgment,
    for the defect in the 4th count; or for a new trial, on the ground of variance between the declaration and proof; and because the judge should have compelled the plaintiff to elect between his counts; and also for error in the charge.
    Notice of the motion in arrest was not given till after October term, 1827. «
    'J. A. Spencer, contra.
   Curia, per Savage, Ch. J.

The motion m arrest of judgment came too late. Notice should be given of such a motion within the four first days of the term next after trial. Here notice was first given for the fourth term.

But, under the circumstances of the case, had the motion been made in season, we would allow an opportunity to amend, as it appears the assumpsit clause in the fourth count was in the draft of the declaration, and in the nisi prius record.

The questions on the case arq, first, as to the variance. Though the first three counts are not drawn as artificially as they might have been, yet I incline to the opinion expressed by the judge at the trial, that the evidence supports them all. I think it more particularly applicable to the third.

The judge was right in refusing the nonsuit; and I know of no practice compelling the plaintiff to elect, on the trial, * which of his counts he will apply the evidence to in this action. Where there are several counts in the declaration, and one bad, upon a general verdict, judgment will be arrested unless the verdict can be amended by the judge’s notes, so as to apply it to the good counts; and it is not too late, on a motion in arrest of judgment, for the plaintiff to move for such amendment. (1 John. 506. 11 John. 100.)

Was there any misdirection by the judge ? The action < , , -fo, , f , was upon a special contract, and that contract was proved. , . . ' The plaintiff must, therefore, recover upon that contract, or fa¡q jn yg actiQn, There is no ground for resorting to a common count. If the plaintiff has no special count, under which his special contract can be received in evidence, he must be nonsuited.

So if the jury believed that the plaintiff subsequently extended the time, then the boards were carried under a different contract than that declared on, and the plaintiff could not recover at all: not on the special counts, because of the variance not on the common counts, because there was a special agreement. (Bull. N. P. 139. 4 B. & P. 355.) I think, therefore, the judge erred in instructing the jury to find a verdict on the common count.

A new trial should be granted; the costs to abide the event.

New trial granted. 
      
       Burhans v. Libbits, 1 How. Pr. R. 21, 23. Sayre v. Jewett, 12 Wen. 135. Postly v. Mott, 3 Denlo, 354. The Union Turnpike" v. Jenkins, 1 Caines, 392. Hopkins v. Beedle, id. 347. A justice of peace has the same power to allow amendments in cases pending before him as is possessed by courts of record. Mosher v. Lawrence, 4 Denio, 419.
     