Gordon v. Hood

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.