Legal Opinion

Larry v. Herrick

Supreme Court of New Hampshire

Decided December 5, 1876PublishedCited by 1 opinion

Case. The declaration contained two counts, — one in trover for a yoke of oxen, and another setting forth, in detail, grounds upon which the plaintiff claimed to recover special damages for the taking and conversion of the same oxen. At the trial the plaintiff read and relied only on the count in trover.

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Case. The declaration contained two counts, — one in trover for a yoke of oxen, and another setting forth, in detail, grounds upon which the plaintiff claimed to recover special damages for the taking and conversion of the same oxen. At the trial the plaintiff read and relied only on the count in trover. The plaintiff testified, in his own behalf, in relation to an interview with his counsel before the writ was made, in which he gave them information as to the nature of his claim; and there was no evidence that his counsel derived any such information from any other source. There was no…

1Opinion of the CourtFoster, J.

It is customary and proper, under our practice, for the

plaintiff’s counsel to state his client’s case in various forms in different counts, in order to meet the proof which he may encounter upon the trial. Such statements may be apparently inconsistent, if regarded as a narrative of facts instead of a mere form of pleading. At the trial, one count cannot be adduced as evidence against another; nor can the fact, that evidence was offered at one time to sustain such count, be regarded as an admission by the party, on a subsequent trial of the same cause, that the facts as charged in such count…

2Cases cited2 opinions

  1. Hughes v. MooreSupreme Court of the United States · 1812
  2. Keeler v. BartineNew York Supreme Court · 1834

3Cited by1 opinion

  1. George W. Blanchard & Son Co. v. American Realty Co.Supreme Court of New Hampshire · 1919

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