¶1Both counts are common counts in contract, the one upon an account annexed, and the other for money had and received. The words in the writ, “ with count in tort,” no such count having been filed, are mere surplusage. The submission to arbitration by rule of court was a waiver of all defects in the pleadings. The appeal is frivolous. But the plaintiff’s motion for double costs cannot be granted, because the statute upon that subject is limited to exceptions, and does not extend to appeals. Gen. Sts. c. 112, § 13. Delaney v. Towns, 1 Allen, 407. Judgment affirmed.
120 Mass. 218
Ames v. Stevens
Massachusetts Supreme Judicial Court
Decided April 5, 1876
Massachusetts Supreme Judicial Court · decided 1876-04-05
Contract. The writ described the action as one of contract with a count in tort, and did not allege that they were for the same cause of action. The declaration contained two counts. The first count was as follows: “ And the plaintiff says the defendant owes her $45 according to the account annexed.” The account annexed was for rent of a room and board.
Cited by 2 later decisions — most recently December 1946
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1876-04-05
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