
    Cyrus P. Dryden, in Error, versus John Dryden
    Where upon a default damages are assessed on all the counts, and one of them would be bad on general demurrer, the judgment must be reversed.
    John Dryden brought an action against Cyrus P. Dryden, in which he declared, 1. on a written contract, 2. for money had and received, and 3. for goods sold and delivered. Judgment was rendered against Cyrus, on all the counts, at February term 1827, of the Court of Common Pleas, upon a default. Whereupon he brought his writ of error, assigning for error that the first count was insufficient to sustain the action.
    
      Wells, for the plaintiff in error, said the default did not cure the defect, which was fatal on general demurrer.
    
      Collins v. Gibbs, 2 Burr. 899 ; 1 Wms’s Saund. 228, note 1 ; Hemmenway v. Hickes, 4 Pick. 500. Where one count is defective, and damages are assessed by the jury on the whole declaration, judgment will be reversed, except where the judge certifies that there was no evidence on the insufficient count. Backus v. Richardson, 5 Johns. R. 476 ; Cheetham v. Til-lot son, ibid. 430 ; Eddowes v. Hopkins, 1 Doug. 376 ; Clark v. Lamb, 6 Pick. 516. [ Wilde J. If the damages are assessed by the Court, perhaps it is to be presumed that they are given only on a good count]. In point of fact, in cases of default, the damages are usually allowed by the clerk upon the statement of the plaintiff, and are not assessed by the court; and the court never inquire into the sufficiency of the counts. In the present inslance, we know from the calculations of the party on the clerk’s files, that he took judgment on the first count.
    The defendant in error did not appear.
   Per Curiam.

The judgment in this case must be reversed. The first count in the declaration is clearly bad in substance, (and would be so adjudged on demurrer or motion in arrest of judgment,) inasmuch as it does not allege any breach of the contract set forth. The damages after a default are general, and without looking into the papers filed, to see how the damages were in fact assessed, there is no legal ground to presume that they were not assessed on this count. The rule is well settled in case of a verdict, and general damages, when one count is bad in substance, that the judgment must be reversed, except where it can be amended, by the certificate of the judge, so as to show that the damages were assessed on the good counts alone. The same reasons apply with even more force in case of general damages on a default; and the case of Hemmenway v. Hickes, 4 Pick. 497, is an authority directly in point.

Judgment reversed.  