
    John Barnard versus John Whiting &. Al.
    Where a general verdict had been found at a previous term, upon a declaration containing several counts, one of which was bad, the plaintiff was permitted to amend the verdict [by the minutes of the judge] so as to take it upon such counts only as were sufficient; all the counts being for the same cause oi action.
    This was an action of the case in assumpsit. The declaration contained five several counts. A trial was had before Parker, J., upon the general issue pleaded to all the counts, and a general verdict upon all the counts found for the plaintiff. The defendants moved in arrest of judgment, because the last count was bad, and the verdict being found upon all the counts, judgment ought not to be rendered upon it.
    The count, to which the objection was made, was as follows, viz “ for that the said. W. and F., at, &c., on, &c., being indebted to the plaintiff in the sum of 2172 dollars in bills of the Penobscot bank, of the value of 2172 dollars, before that time had and received by them, the said W. and F., to the use of the plaintiff, in consideration thereof, then and there promised the plaintiff to [ * 359 ] pay and satisfy * the same to him when they should be thereunto required ; yet, though requested,” &c.
   By the Court.

The last count is clearly bad. A general count of indebitatus assumpsit, for money had and received, must be for cash ; but here it is for bank bills. Judgment cannot be rendered on this count.

Whitman and J. Richardson for the defendants.

Williams and Bigelow for the plaintiff.

But the judge, who sat at the trial, has certified to us that all the counts in the declaration were, in fact, for one and the same cause of action. He might have directed a verdict upon such count as the evidence applied to. And, although he did not do this, the plaintiff may yet amend his verdict, by taking it on either of the counts, upon this certificate of the judge, notwithstanding it is not of the same term.

The verdict was accordingly so amended as to find for the plaintiff upon one count only; and judgment was entered upon it so amended.  