
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    
      GOODLOE v. POTTS.
    >• Appeal.
    All defective averments in pleading are cured t>y a verdict. [Acc. Anderson v. Read, 2 Tenn. 205, and cases there cited.]
    Potts declared against Goodloe in an action of Trover. The declaration stated that the said Potts, on the first day of May, 1810, at the county aforesaid, was possessed of a certain bay horse of the price of one hundred dollars ; and being so possessed thereof, &c.
    The declaration contained another count as follows: “ And whereas afterwards, viz. on the same day and year aforesaid, at the county aforesaid, the said Potts was possessed of a certain other bay horse of the price of $ 100 ; the said horse being an estray, which the said Potts, according to the act of Assembly in that case made and provided, had taken up; and being so possessed, the said Goodloe, afterwards, viz. on the day and year aforesaid, at the county aforesaid, demanded the said horse of the said Potts, as being the proper goods and chattels of the said Goodloe; and the said Goodloe, contriving and fraudulently intending the said Potts subtilely and craftily to deceive, and without proving the said horse to be the proper goods and chattels of him the said Goodloe; and without complying with the act of Assembly in that case made and provided, took and carried away the said horse out of the possession of the said Potts, and to deliver the same,” &c.
    The defendant pleaded not guilty. Upon a verdict and judgment being rendered in favor of Potts, Goodloe appealed to this Court; and assigned for error, —
    1. That the declaration does not allege property to be in the plaintiff, and
    2. That the first and second counts in the declaration are inconsistent, as the second charges a direct injury, and the first an injury which is only consequential.
    
      Huyes and Dickinson, for the appellant.
    
      Belch, for the appellee.
   Overton, J.

delivered the following opinion of the Court: —

There are two counts in this declaration; and it has been assumed in argument that one was intended for trover, and the other for trespass. It is argued that the two counts cannot be joined; and that the first count is objectionable, in not alleging property in the plaintiff. It states that he was possessed of the horse, omitting the usual expressions as of his own proper goods and chattels.

In this case it is not indispensably necessary that the Court should determine whether trover or. trespass can be joined ; if it were, we should be strongly inclined to the opinion that they can. 2 Saund. 117 (note c).

The first count is good after verdict. There is an averment, though defective ; and all defective averments are cured by a verdict.

From the second count it appears’ that the plaintiff was possessed of a stray horse, which the defendant claimed as his property, and took him away without the permission of the plaintiff, and against the provisions of the act of Assembly. It is intended as a special statement of the plaintiff’s case, regardless of the general forms in either trover or trespass. The action was commenced in the County Court; and our laws expressly command that nothing shall be lost in the County Courts for want of form. These counts are sufficiently sensible to convey an idea of the case complained of; but if the second count were objectionable, the first is good; and after verdict, by the Act of 1801, ch. 6, the defect is cured.

Let the judgment be affirmed.  