This action having been brought originally in the superior court, the plaintiff would have been entitled to no costs, if he had not recovered, as damages, a sum exceeding twenty dollars. Gen. Sts. c. 156, § 5. But the judgment which he recovered was for more than twenty dollars; it being for the aggregate of the several sums assessed by the jury, as damages, on the different counts in the plaintiff’s declaration. The jury had a right to assess entire damages on all the counts, or separate damages on each count. Payne v. Selby, 1 Rol. R. 423. 1 Chit. Pl. (6th Amer. ed.) 445. And as they took the latter course, judgment was rendered in the proper form, to wit, for the amount of the sums that were separately assessed. See 2 Richardson’s Practice in C. P. (7th ed.) 263. Smith v. Festiniog Railway Co., 6 Dowl. P. C. 190, and 3 Hodges, 305.
The objection now made by the defendant, that here was a misjoinder of counts, comes too late to be heard. It should have been made by demurrer, or otherwise, before trial. Gen. Sts. c. 129, §§ 11, 12, 79.
Taxation affirmed.