
    Wenberg against Homer.
    
      Philadelphia, Friday, April 15.
    if the writ is^m declaration is part ™ defendant cannot move in arrest ot judgment, if the ®avou/upoim the count in cast.
    IN this case the writ was in trespass for an assault and battery, and the declaration contained three counts, the first two for assault and battery, and the third for the misconduct of the captain as master of the ship Piscataqua, in 1 . . , . - r causelessly dismissing the plaintiff from his post ot mate ot that ship. Plea non cul. ' i
    
    The cause was tried at a Nisi Prius before Yeates J. in January last, when the jury found for the plaintiff on the first two counts, damages 250 dollars, and for the defendant on the third.
    
      Browne for the defendant moved for a new trial,
    on the ground of excessive damages, and in arrest of judgment, in consequence of the variance between the writ and declaration, and the mis-joinder of counts. ■ He contended that although the jury had found for his client on the third count, yet the plaintiff under it had introduced evidence which influenced the jury to 'assess extravagant damages on the others.
    
      Shoemaker contra,
    answered that the third count was now immaterial in consequence of the finding, and that under this circumstance the Court would disregard the variance. 1 Qhitty 248, 254, 401., 3 Saund. 171 b. c.
    
   Tiúghman J.

There is no reason to arrest the judgment, because the verdict on the bad count was for the defendant. As to damages, although it is possible that the jury may have been influenced in some degree by the evidence applicable to the other counts, yet we ought not to suppose so, unless it is very plain. Judge Yeates does not think the damages so improper as to authorize anew trial, supposing them to have been grounded solely on the evidence applicable to the first and second couqts; and it appears to us all in the same light. We are therefore of opinion that judgment should be entered on the verdict.

Judgment for plaintiff.  