
    Gordon against Hood.
    
      December, 1823.
    In trespass, the first court in the declaration is without, positive averment. Judgment should not be arrested.
    IN the- Circuit Court of St. Clair County, Samuel G. Gordon declared against John Hood, “ for this, that whereas “ ^ sa^ defendant on the-day, &c. at, &c. with “ force and arms, one road waggon, &c. forcibly took out of « the possession of said plaintiff, &c. And also for that the smct defendant with iorceand arms, on the same day and « year aforesaid, at-, &c. carried away a certain road “ waggon, &c. the property of said Samuel,” &c.
    The defendant plead not guilty, and a special plea of justification. Verdict for the plaintiff; and on motion of defendant, the Circuit Court arrested the judgment. On a writ of Error to this Court, Gordon assigned this matter as Error.
    
      McMeans for plaintiff.
    
      McClury for defendant in Error.
   Judge Crenshaw

delivered the opinion of the Court.

The declaration contains two counts. The first commences that the plaintiff complains, “ for this, that whereas,” &c. The second, “ and also for that,” stating the charge without a whereas. The authorities seem to support the doctrine that in actions of trespass a statement of the injury under a Quid cum is not a sufficiently positive averment; but I am clearly of opinion that the defect is aided by our Statute of amendments, especially after verdict. Even in England, according to the more modern decisions, such a defect could be noticed by special demurrer only, and was amendable at any time before or after judgment. (1 Chitty’s Pl. 275) see also the case of Coffin against Coffin, 2 Mass. R. 358. 7th John. 109.

The judgment of the Circuit Court must be reversed, and judgment rendered here for the damages assessed.  