#### Sumner vs. Spencer.

In an action of forcible entry and detainer, a variance between the affidavit filed by plaintiff, and the writ, may be pleaded in abatement.

*442If the' actioA is for a forcible entry and detainer, tire affidavit must correspond with that form of action: if for unlawful detainer, it must be framed accordingly.

Where the writ is abated on a plea for variance between it and the affidavit, the defendant is entitled to judgment for restitution.

Appeal ftorn the Madison Circuit Court.

On the' 12th of April, 1848, John C. Sumner filed a declaration in the Madison Circuit Court, complaining of James Spencer, “ wherefore, he forcibly and unlawfully holds possession of the rbal estate of said plaintiff”; and alleging that, on the 12th clay of November, 1845, he was seized and possessed of a certain tract of land, and that defendant, on said day, forcibly entered upon said real estate, and unlawfully withheld the same from said plaintiff, after demand, &c. Appended to the declaration, was the following affidavit:

“STATE CF ARKANSAS,)

County of Madison. )

Be it known that John C. Sumner, on this the 12th of April, A. D. 1848, appeared before me, John Berry, an acting justice of the peace, for said eounty, and, upon his oath, says that he is lawfully entitled to the possession of the real estate described in the foregoing declaration, and that said James Spencer unlawfully detains the same, after lawful demand therefor made. J. C. SUMNER.

Sworn to and subscribed before me, this day and date aforesaid. JOHN BERRY, J. P.”

The writ followed the form of the declaration for forcible entry and detainer, and by virtue thereof the sheriff put the plaintiff in possession of the premises.

At the return term, (May, 1848,) the defendont filed the following plea in abatement:

“The defendant, by attorney, comes and defends, &c., and prays judgment of the writ in this case, because he says that there is a variance between the same and the affidavit made and filed by the said plaintiff, in this, that is to say, the affidavit *443alleges that the defendant unlawfully detains certain lands therein mentioned from the said plaintiff, and the writ issued thereon is for the forcible entry and detainer of the same land by the said defendant: and this he, the defendant, is ready to verifywherefore, because of the variance aforesaid, the said defendant prays judgment of said writ, and that the same may be quashed.” Murphey & Costa.

The plea was verified by defendant’s affidavit. Plaintiff demurred to the plea, on the grounds: 1st, that the variance alleged in the plea was immaterial and frivolous: 2d, that it was not necessary, in law, that the affidavit and writ should correspond in the matter therein set forth. The court overruled the demurrer, plaintiff declined answering the plea, judgment was rendered in favor of defendant for costs, and writ of restitution awarded, and plaintiff appealed.

D. Walker, for the appellant,

admitted that a variance between the writ and declaration might be pleaded in abatement; but denied that a variance between the affidavit and writ is matter of abatement: and contended that the court erred in rendering final judgment for the defendant — that the same principles govern in this case as in the action of replevin, when the writ is abated. 1 Eng. R. 506.

Walker, J. Did not sit.

Scott, J.

The demurrer to the defendant’s plea in abatement was correctly overruled. The affidavit was .clearly insuffiient, and its variance from the writ, set up by the plea, was but a substantial assertion of this insufficiency. The statute provides for an affidavit that is in perfect harmony and accordance with the writ and declaration in each given case, and no affidavit, other than one in strict conformity to the statute, can be recognized as sufficient. In most cases this want of sufficiency may be as well presented and exemplified by an allegation of substantive variance from the writ, or writ and declaration, as by *444an Allegation of specific irisufliciency: indeed, such' substantial variance and specific insufficiency will, in many cases, as in the present,'be, in effect, but reciprocal1 or. convertible terms.

{This remedy, like all'of the class which changes possession of property before the defendant has had an ‘opportunity to be heard in a court of justice, is' strongly in derogation- of common right, and, although its operation will be often beneficent, it will be perhaps as often found an' instrument of injustice and oppression, and' possibly sometimes a means of irreparable mischief, and, according to well settled rules, it must, so far as the plaintiff is concerned, be kept strictly within the provisions of the statute, which creates and qualifies it. - More latitude, however, is allowed the defendant, springing from the reason of the same rule, which inculcates strictness as to the plaintiff, and so also as to the proceedings authorized by the twentieth section,' {Digest-, p. 538,) as. these contemplate no change of possession until after the defendant has been allowed an opportunity to be heard, and has had his rights' passed upon “by the-judgment of his peers or the laws of' the land.” And the provisions of this section manifest- still more plainly the intention of the Legislature that the prescribed affidavit and bond required by the sixth and and seventh sections shall be Indispensable prerequisites tó a proceeding contemplating a change of the possession of the -property in the commencement of the suit.

When the declaration is for “forcible entry and detainer,” and the plaintiff elects to adopt that mode of proceeding which will dispossess the defendant at the commencement of the action; as in the"'case before us, the affidavit must- not only state that “the plaintiff is lawfully entitled to the possession of the lands, tenements, or other possession, mentioned in the complaint, but also : that the'defendant forcibly entered upon and detains the same after lawful demand made therefor.” In this case the affidavit is fatally variant from the writ in not stating that the defendant “forcibly entered” upon, as well as unlawfully detains the premises in question. .Had the action been for “unlawful de-tainer,” the affidavit would have been sufficient, and would not *445have been variant from a proper declaration and writ in such case.

Nor did the court below err in the judgment for costs and restitution upon the overruling of the demurrer and the plaintiff saying nothing further. Restitution was properly awarded, that the parties might be placed in statu quo, leaving their rights to be settled by law in future proceedings at the election of the parties. (See Fleman et al. vs. Horen et al., 3 Eng. 355, and the cases there cited.) Had this not been done, the plaintiff would have profited by his own omissions and wrong, and the process of the court would have been abused and perverted to purposes of injustice.

Finding no error in the record, the judgment of the court below must be affirmed with costs.