case hall against douglas a declaration in trespass way et arms though by way  of recital videlicet whereas the say defendant on such a day with force and  arm make a assault c be good in the common plea after verdict SC will SC barn  in assault and battery the plaintiff in his declaration recite the origin all  writ that the defendant be attach to answer the plaintiff in a plea wherefore  with force and arm be make a assault upon the plaintiff and he do beat will c  modern er p and then the declaration go on and whereupon the say plaintiff by  his attorney complain whereas the say defendant on the eight day of April with  force and arm make a assault upon the plaintiff and do beat will c there be  another count and also that whereas c and the declaration conclude whereupon  the say plaintiff say that he be injure and have suffer damage to fifty pound  and thereupon be bring his suit upon the general issue the defendant be find  guilty it be move in arrest of judgement because the declaration be total  recital and nothing positive against the defendant draper sergeant for the  plaintiff argue that although the declaration begin with a recital it conclude  with a positive averment that by reason of the two battery the plaintiff be  injure and have damage to fifty pound and therefore the present objection be a  trite one and though there be two or three old book where it have prevail yet  by the several modern authority it be quite discountenance in daile v coat a  in trespass the writ be for break the plaintiff house way et arms c the door  and take away his good the count be to the same effect but omit way et arms  and without say good svan after a writ of enquiry of damage award for want of  a plea of the return thereof it be move in arrest of judgement first that way  et arms be omit in the count second that it be not allege in the count that  the plaintiff have any property in the good for it be not say good svan but  the plaintiff counsel answer that in the common plea the writ be part of the  count and the matter omit in the count be in the writ and so the writ shall  make the count good modern for the count refer to the writ and the the  plaintiff have judgement in the case of hardy v tailor a error to reverse a  judgement in trespass because the declaration be foot ambulando c without say  ad valentian in the count but as this be in the writ the court think it good  enough and there be a quaere put by Twisden justice whether there be not a  difference as to this between a suit by bill and original in warren v Lapdon b  in trespass the plaintiff declare quare cum it be move in arrest of judgement  but no rule be make the court be of opinion that though the cum in the count  if it stand alone may be bad yet the recital of the original which go before  help it that the present be not to be compare to action of debt upon bind  where the declaration begin with recital as here whereas the defendant become  bind to the plaintiff c yet the defendant have not pay the plaintiff whereupon  c this be the same case as it conclude with a positive averment Mr sergeant  prime for the defendant that judgement ought to be arrest and cite Briggs v  sheriff c that be error of a judgement in the common plea in trespass of  battery because the declaration be quod cum c because there be no absolute  affirmation of the trespass but only by inference but a action upon the Iatter  case be good enough the reason be because in trespass way et arms a fine be to  be pay to the king by the party for breach of the peace and therefore the  trespass must be positive aver but in the Iatter case damage be only to be  recover and the defendant amerce that in action upon the case indeed the  consideration be lie by way of recital whereas the defendant be indebt to the  plaintiff c but then there follow a positive averment that in consideration  thereof the defendant promise c and have not perform c sergeant draper in  reply that the whole declaration in case be recital and only the breach allege  positive that the case of Briggs v sheriff be cite in good and yet that case  though commence original in the king bench be adjudge contrary to cro  Elizabeth that all the other case he have cite lev Jones salk Bulst cro James  d be all of they suit original commence in the king bench where they declare  against the defendant in custodian mareschalli and the bill be not part of the  count and there have be former a distinction between suit commence in the two  court whereby such declaration have be always aid in this and now the king  bench itself hold such declaration to be good even in that court and aid it by  order it to be file and they do so in a late case so that all these resolution  be overturn modern er p Mr sergeant Bootle then stand up as friend curiae and  say he be of counsel in a late case in the king bench where modern he take the  same objection to a declaration there as be make in the present case that the  court overrule it by order the bill to be file and that they will amend the  declaration by that so that now both court be uniform as to their resolution  and there be no distinction whether the say suit be by original in the common  plea or by bill in the king bench for both court will now amend will chief  justice there be a multitude of ancient case where the word quare cum and quod  cum in declaration of trespass have be hold to be fatal but the judge in  modern time have be dissatisfy with the doctrine of those case and fearful of  direct declare they be not law yet very desirous to get over they they  endeavour at a distinction and it have be three or four time determine that  there be a difference between suit commence by original in this court and by  bill in the king bench and though it may be right to arrest judgement in the  king bench for such a defect as the present yet it will be otherwise in this  court because the original be part of the count and if the original be right  and the count wrong yet the Iatter may be help and amend by the former but  otherwise in the king bench for there the bill be not part of the count for  there you declare against the defendant in custodian mareschalli and though  the bill be right yet if the count be wrong it can be amend by it but if I be  in that court I will break through that distinction and I be glad to hear from  the bar that they have do so in a late case there by order the bill to be file  and amend the count by that for it will be shameful that such a objection as  this after the statute shall overcome a verdict as to the distinction between  action on the case and debt or why this declaration of trespass of assault way  et arms be not as well as action upon the case or debt I can tell the  principle I go upon be to prevent the form of thing destroy the substance if  this objection have be assign special for cause of demurrer it may have meet  with different success but as it be make after verdict it may receive a plain  answer because if there be enough find to give judgement upon there it be cure  and I be of opinion that there be sufficient find to give our judgement accord  to the justice of the case the present averment be as good as in all action of  the case for in such declaration not only the consideration but even the  promise the foundation of the action come by recital and under a whereas and  be like the present case but I shall answer further that though the averment  in the present case be not accord to the common form yet the plaintiff can not  obtain a verdict without prove what come under the whereas at the trial the  declaration be whereas the defendant do such a thing to the plaintiff unde he  be damage the word unde be proper translate by reason whereof he receive  damage the jury have give damage and they must be by reason thereof because  there be no other lie for they to give damage upon it be the same thing as  though it have be modern aver at first but the last word first and suppose the  declaration begin the plaintiff be damage in twenty pound by reason that the  defendant beat he this will be a good averment and the present case be like it  Abney justice I remember it be always mention in the king bench that such  declaration as this be good in this court though bad in that the form of  declare in the court be conceive to occasion the difference here there be a  original but there be none but I be now glad that they help such declaration  in that court after verdict by amendment by order the bill to be file I agree  with my Lord chief justice in everything Burnett justice I remember the case  of franklin v beef cite by my brother and the conclusion Lord Hardwicke come  to be that as in the common plea he take the writ to be part of the  declaration he will send for the original by award a certiorari and when that  come here we shall have the same foundation to amend by as the court of common  plea will and the judgement be affirm the court rule for arrest of judgement  must be discharge see white v shaw in the common plea where a declaration in  trespass way et arms quod cum c be hold good on a special demurrer will a  modern er p