¶1The Opinion of the Court was delivered by
¶2A history, rather than an abstract of the pleadings, is all that I deem necessary in this case, as the only material questions are questions of practice.
¶3The plaintiffs brought an action of covenant upon the covenants in a deed for a breach of the warranty, by which they had lost their title. The declaration contained three counts. The defendants made default. A jury was impannelled and assessed damages. . Whereupon, on motion of defendants,, the Court arrested judgment upon the ground that some of the counts in the declaration were bad. This is assigned for error.
¶4Although some of the counts may be faulty, we are of opinion that the order of the Court was erroneous. It is provided by our statute, ( Rev. Stat. ch. 82, § 25), that “whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed, if any one or more of the counts be good. But if one or more counts be faulty, the defendant may apply to the Court to instruct the jury to disregard such faulty counts.” Is an inquisition of damages, taken upon a default, a verdict within the meaning of the statute? We are of opinion it is.
¶5In Rowe v. Crutchfield, 1 Hen. & Mun. 361, a similar quest-ion\arofe- upon a statute like ours, and was held for the plaintiff. See; also, Duke of Bedford v. Allcocke, 1 Wilson, 252-3. The rule at common law was, that where entire damages were; given, and there was a faulty count, this shall be. fatal.,. It was to remedy this inconvenient and ill-founded rule that our statute was passed. We will presume, unless thB; contrary is shown, that the evidence was offered under and sustained the good counts. The defendants may, under the statute, ask to have the faulty counts disregarded by the jury, and this becomes matter of right, and for- a refusal a bill of exceptions might lie. In this way, they may confine the plaintiff’s in their proofs to such counts as are good, and so compel them to make out their case, by proof of sufficient counts. If, in fact, evidence was- offered in support of the. faulty counts only, it is their fault in not attending to their case. See 12 Ohio, 10; 13 do. 200.
¶6The order arresting the judgment will be set aside, and the cause remanded for further proceedings in the Court below. Cost to be paid by the defendants.
¶7Judgment reversed.
¶8Wilson, C. J., did not sit in this case.