The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-05-26

I" 1rf'!ians Parss!, being in custody of'the mar
! shall ofthe marslialsea. of our Lord. the King,
before the King himself ef his, .,aat de 60
quod he, on The twcn,, fifth day of August,
" m the cight'nyc.r of king Henry the eighth,
:" with force and arms, to wit with swords,
" slaves. and knives, upon the said Lawrence,
. at Stcl!igg M the county aforesaid, made an AS
" sault, aud HIM beat, wounded, and l.treatetl,
" so that his life was despaired of, &c''
The declaration then goes on to state the
threats of the defendant, aud the plaintiffs loss
OF business, and concludes with AHA eno,1nia
and conf, fpacens. in the usual form-In the next
folio ofthe same book, there is declaration in
case, upon the custom of England, for negligent
ly keeping fire, whereby the plaintiffs goods and
chattsls were burnt, which declaration corn.
mences with the same positice averment.--ln TO.
Ito eek. win, b and many other parts of the same
book, declarations in trespass by original, may be
found which commences with sphereds, in recit-
ing the substance ofthe writ, but afterwards
charge the act bosi,ivs !y-See also Rastel's En-.
tries, 661. b.-675. b.---667.- b.-659. b.-64S a.
--635. a. &c. Coies Entries 667. a. b.-Ro6in-
sons Entries from 453 to 479.-Hansaydrs En-.
tries in the court of Kings Bench from zoo To
pa, IN all of which the charge IS positively laid
-He,res Pleader 500 . Lilley's Entries 1913
45l.455 437 al, &c.-1. Richardson's Practice k
b. 1o2. 1852 Richardson's Practice p. PA
25l -JaaPers Practice K l53 156.-Dfo,eaa,S
freeedrnt's 637. 644-y Wentpor,hs system of
pleading. i a. 1895. &c.
Some elementary writers in England, have
sad that quod cum IN trespass was we'll enough
after verdict, though possibly it might he bad on
demurrer. See D. Cor,lyns Dig by Rose 700 Tit
Fledaer g. M 3)-2. Morg Tad Nee 223-
In support OF this position, the case of Douglas
VS.. Hall. i. Wills. 90. is cited: but, OH exainin.
ing that case, 1t will be found, that atheugi, the
court of. Kings Bench, inclined to get over
the objection, yet the point was never decided
ri in tha x,f or
wis 2OS In the common pleas, it was expressly
adludged, on special demurrer, that the guod
cum, did not vititte The declaration but this
was ON the ground, that, in that court the writ is
set out in the declaration and the count is help
ed thereby tho perhaps, said the court, if ii
mad been a proceeding by bill in the Kings
Bench, 1t might have been ill To the same eff
feet is io':.:,aeS Notes, 1872 Hall VS. Douglas Ibid
gay WDren VS.. Lapien -Barnadistons X b.
AZ, Bdte1nan IS Fowler. 4andre7rs 81. Smith vs
Reynolds Ibid. 2o2 Goodspriyht VS. HoieSon. Bur
the court OF Ang's Bench now get over the oh
]ecuon gtter Verdict, by suffering the pit. file
arght bill the time of fling which they refuse
10 enquire INTO and then amending the declara
ton by 1t. See 2. Stra. 1151. Wider VS. Hand.
Ibid. 1852. MarshaNvs Rigs l. Ti1las brac-
tiee Ril~.ps Edtt y 500.
The following cases turned upon objections
to the declaration for want of a positive ave.
nent Gro Eis- SOY. (B. r. Briggs VS.. Sheriff,
IN trespass, assault and battery, udgr ment of tie
common pleas reversed, on account of ouoG cwn
ia The declaration.-Style M Oh. R.) Bm!er VS.
Long After verdict and judgement in trespass
IN corporation court, error was brought, and
the quad cn'n assigned for Per Role g.
qfod cum, IN uosiiass is not good, though in an
other action 1T may. zones 1877. (B. n Ghoie-
me.F IS, Nor'on Trespass for battery and false
imprisonment the pit declared quod cam &c
the dett. Justified by process of AN inferior
court and after other pleadings there was a
de'nurrer; but the court, without regarding the
plea, and though it was confession of the mat
ter m the declaration, gave Judgement thar the
pr. tcEe nothing by his bill, for by the cum the
declaration was defective in substance. nothing
beng precisely afrmcd.-2. Euls,rode 2l5
Shetland VS.. Reaten (b. RI TresSass for as
sautt and battery on not guilty pleaded, there
was verdict tor the plaintiff aud motion in
arrest OF judgement, because the declaration was
with quoa cum. After two arguments the
whole court except CAKE, were of opinion that
the declaration bad, and determined
that they would be governedby precedents,
which were ordered to be searched for; and tw O
we're found by the secondary directly in point, that
the qnoa c@n was Insufficient. On tue first ar.
gument; Core held that the declaration contained
SUFFICIENT matter Of substance but however
that might be, he thoughtit WAS aided by the
statute So. Edw. 3 C.. 16. which declares, that
" BY The ancient terms and forms OF pleaders,
action he fully Shezved IN the declaration and tie
So'H"-2. LevinZ. 1913. Nors VS.. IAackcr (B.
R) Case for words there were two counts
III the declaration, tue second of which was cum.
que etid'n the dett. spoke certain other words &C.
After verdict, and entire damages given, it was
moved, In arrest of judgement, that the last
count was not affirmative. But, by the court,
Tins is well enough in action on the case, as
this is, although, in freSbass, it has been ruled
Iil--I6ia 200 WinehhaA VS.. ;SherSrin Error of
a Judgement IN battery, i'll Chester, that the de-
claratIon was by way of recital, quod cum, he
was beaten &c. upon which the judgement was
arrested. FHS Gibbons 255. tB R) Norman
and George. Trespass, assault, and battery, in
the Common Pleas verdict for the pit. and er.
ror brought III the Kings Bench and the error
assigned was, that the declaration contained no
positive averment, being with quod cnn.-It
was argued on the point, whether the rectal of
the writ, IN the declaration could AID the count
the court seemed inclined against the plaintiff :;
but no judgement was given
UJ 1t was however afterwards held in White
VS.. Shd7U, 2 wills, 203, that in the common pleas
wherethe Writ WAS set out in the declaration the.
c0uit was helped by the writ-& judgement was
gwen for the plaintiff Salk 636 Oh. RI Hare,
VS.. Chds'nan. In trespass, the pit. declared
qaaTe,Uf ct 0rnriS &c. after verdict for thepIait
Judgement was arrested for quare is not posi-
1--WE but interrogatory, and much worse than
qaOd cum
But IT. in trespass, the plaintiff declare will, a
qnod cum, and afterwards charge another tres.
pass, with also de go 9nod &c. and have a verdict
as to the last part, though it be for the defendant
under the qHod cum, judgement shall not be ar.
rested Tor the latter part is by way of posi-
tive charge, Stra. 681. Do6bs vs. Eaf,nunds, 9
La' Raynt 1913 S C.-2 Shou 81. DanstaH qui