The declaration consists of five counts. The first,, second and fifth are upon the guaranty of a note ; the third and fourth are the common counts. After a general verdict, a motion was made-to arrest the judgment, from the insufficiency of the three counts on *15•the guaranty, which was overruled by the court, and this suit is brought to correct the alleged error.

But a question must be first settled, whether the 142d section of the Practice Act (Swan’s Stat. 688) does not require courts to sustain verdicts, even upon defective counts, where one good one is found among them. It authorizes the court taking the verdict to strike out the bad counts, before or after motions in arrest, to give judgment upon those .good ones, to which the evidence applies ; “ and where sufficient appears t,o sustain the verdict, the judgment shall not be reversed on account of the defective counts.” This last clause relates to the duty of the court on error, for the word “ reverse” is applicable to no other.

A majority of the court find on this record enough appearing to sustain the verdict. They find two counts upon promises well plead, .and the verdict that they were made as set forth ; and they will intend that the damages were computed upon these, unless it appears by the evidence, spread upon the record by a bill of exceptions, that it was not thus applicable. For errors in the amount of damages will not be corrected in error unless the record supply the means, and the court 15] of * error will presume the correctness of the proceedings they are called to inspect, until the errors appear on their face.

Judgment affirmed.

dissenting. The special counts in this case do not show any consideration for the promises which they set forth, and are, therefore, defective. The common counts are good. The verdict is general, and the judgment sought to be reversed isa general one. At common law, such a judgment would be erroneous ; I think it is so under our statute. The act of the 9th March, 1835, (Swan’s Stat., 688,) is relied upon to sustain it. The words are : “ Whenever sufficient appears to sustain the verdict, the judgment shall not be reversed on account of such defective counts.” If the fact, that a verdict was found for the plaintiff, satisfies the words of the statute, and shows that sufficient appears to sustain that verdie't, then my brethren are correct, and I am in error. But, is that the meaning of the law ? If it is, why did not the Legislature say, iu direct terms, that, in all cases, where the declaration contained one good and some bad counts, and the verdict was for the plaintiff, the judgment should be held good ? Why require that sufficient should appear to sustain the verdict, if they meant that the mere verdict appearing, it should sustain itself? Looking at the mischief to be remedied, and the *16statute together, it appears to me clear that the object of the Legislature was to save those verdicts only, where the record, independent of the verdict, shows the party entitled to recover upon the good counts. This record shows nothing of the kind. No man can tell from it whether the verdict was right or wrong. It does not appear that the jury were in possession of the slightest evidence to sustain the common counts. Nothing that tends to their support appears.