#### Daniel Glisson, Jun. v. Daniel and William Herring.

From Duplin.

In England, no advantage can be taken of a variance between the original and the declaration except upon oyer of the writ; because the writ issues from another Court, and does not become a part of the record unless oyer be had of it.

But here the writ issues from the Court to which it is returnable, and where the action is to be tried, and is part of the record without oyer. A variance between it and the declaration is fatal, even after verdict.

Where the writ was m trover, and the declaration in detinue, the judgment was arrested.

And the writ being upon the title of the Plaintiff’s intestate, and the declaration upon that oí the Plaintiff hhnseifi the variance is equally fatal.

In such a case, the Supreme Court has no power to amend, notwithstanding the act of 1814, (Rev. ch. 1233 )

The cases of Stamps v. Graves, (4 limóles, 10i,) and Matlock v. Harper, (Ibid. 1,) commented upon and approved.

In this case, the writ was sued out in the name of the Plaintiff, as “administrator of Muncy Glissonby it, the Sheriff was commanded to take the bodies of the Defendants, “ to answer Daniel Glisson, Jim. administrator of Nancy Glisson, of a plea of trespass on the case, to his damage five thousand dollars.”

The declaration was in the following form :

“ -D. H. and W. II were attached to answer H G. Jan. of a plea of trespass on the case, and thereupon the said II. G, Jun. by, &c. complains for that whereas the said H. G. Jun. heretofore, to wit, on, &c. at, &q. was lawfully possessed as of his own property, of certain *157negro slaves, to wit, Mary, &c. of great value, to wit of the value, &c. and being so possessed thereof, he the said D. G. Jun. afterwards, to wit, on, &c. at, &c. casually lost the said slaves out of his possession, and the same afterwards, to wit, on, See. at, &c. came to the possession of the said D. 11. and W. R. by finding. Yet the said Z). II. and W. R. well knowing the said slaves to be the property of the said 11. G. Jun. have not as yet delivered the said slaves to the said £>. G. Jun. although often requested so to do, and have detained, and still do detain the same, to wit, at, &c. to the damage of the said I). G. Jun. and therefore, &c.

June, 1829.

After a verdict for the Plaintiff, the Defendant moved in the Court below in arrest of judgment, on the ground of a variance between the writ and the declaration — the former being to answer the Plaintiff on the tille of his intestate, Nancy Glisson, and the latter counting upon the title of the Plaintiff himself. The rule obtained on this motion, was discharged by his Honor Judge.Nor-wood, and judgment rendered for the Plaintiff — from which the Defendants appealed.

In this Court, Badger, for the Defendants, in addition to the motion in the Court below, moved in arrest of judgment, on account of another variance between the writ and declaration — the first being in trover, and the latter in detinue.

Gaston, for the Plaintiff,

contended, that in law, the facts charged in the declaration amounted to a conversion, which might as well exist where there was a wrongful detention, as where there was a wrongful taking, or a wrongful user. He insisted, therefore, that a verdict affirming the facts set forth in the declaration, amounted, to a general verdict in trover — not merely the fact of a demand and refusal, which was only evidence of a conversion, but to the finding of a conversion itself. For this l>e cited Rex v. Lyme, Regis (Doug. 159J — 1 Chitty Plead. 215, 236, 237.

He contended, that the declaration, if not good in trover, was good as a declaration in case against a bailee, for non-delivery of the property bailed to him by the bailor.

*158He urged, that the objection, having for its object a mere variance, was too late after verdict, and cited, 1 Chitttj PI. 253 — Garland v. Chattel, (12 John. Rep. 430.)

Badger, in reply,

contended, that, the argument on the other side went to confound the well settled distinctions between the several actions — the objection to the declaration being that it followed the form of declaring in detinue in the only respect in which the declaration in that action differed from a declaration in trover.

Afterwards. Gaston moved, under the act of 1824, (■Taylor’s Rev. 1233,) for leave to amend, so as to obviate the objection urged to the pleadings.

Toomer, Judge.

The writ is in case, in the name of the Plaintiff, as administrator of Nancy Glisson; the declaration is in detinue in Plaintiff’s own right. For these variances, it is insisted by the Defendant, that judgment should be arrested.

In England, for the trial of suits at Common Law, writs issue from the Court of Chancery, and they never are of record in the Court in which the cause is tried, except upon oyer. All original writs issue out of the qffidna justifies, from which they are issued ex débito jus-iitice, to suit the exigency of every case. Variances between the writ and declaration are only noticed, when oyer has been had of the original. In the English Courts, oyer is refused, to prevent objections for variance between the writ and declaration. There the capias is considered as mere leading process, to bring the Defendant into Court, to be notified of the cause of action, and when it has performed this office, it is functus qffido. — . It forms no part of the record, and no advantage is taken of its defects, or its variances from the declaration, unless on a motion to set aside the proceedings, which is addressed to the discretion of the Court, and is only granted for the attainment of justice. No inconveniences occur in England from this practice. Neither the Defendant *159nor his bail can sustain injury, because no step is taken in the cause until after the appearance of the Defendant, when the declaration is served on him, and he can then obtain time to plead if he he taken by surprise j and the bail to the writ are discharged by the principal’s appearance.

This notice has been taken of the practice in the English Courts, to point out the great difference between legal proceedings in that country and in our state. They differ upon fundamental principles. By the organization of our Courts, the original writ issues from the Court in which the suit is instituted, and stands for trial. It forms part of the record of the cause. A prayer for the oyer of the writ is unnecessary, and is unknown to our practice. It answers the double purpose of writ and process. It executes the offices of both, and all its functions are not executed by bringing the Defendant into Court. Here, by the construction of our Court law, judgment may be rendered by default against Defendant, as well before as after appearance, and in some cases final judgment. Our bail to the writ, is also bail to the action. Hence great inconvenience might arise, and much injury result, from considering our original writ as mere process, and viewing it as no part of the record. For a more enlarged and able view of this subject, I refer to the case of Stamps v. Graves, (4 Hawks, 102,) in which these points have already been adjudged by this Court.

It has been decided in Stamps v. Graves, that the writ being in debt, and the declaration in assumpsit, the variance is fatal. Here, the writ is in case, and the declaration in detinue. The variance is equally fatal. There is an essential difference between the two actions. Trover is to recover damages for the unlawful conversion of chattels. Detinue is to recover the specific articles, and also damages for their unlawful detention. In trover, the judgment is, that the Plaintiff do recover his damages i in detinue, that he do recover the goods, (or the *160value thereof, if the Plaintiff cannot have the goods,) and his damages. In which should judgment be rendered?

i>u(; ^ is said, the declaration, though not technically drawn, is substantially good in irovcr. It begins by stating, that the Defendants were attached to answer the Plaintiff of a plea of trespass on the case, and thereupon the Plaintiff by his attorney complains, and then proceeds to set forth the cause of action. The recital of the writ, at the commencement, forms no part of the declaration, and cannot alter the character thereof. It is also said, that the averments of possession by Plaintiff, and of finding by Defendants, are common to both notions, and comport with a declaration in trover ; and no departure is observed, until near the close of the declaration, when instead of averring the conversion, according to the precedents in that form of action, it is averred, that the Defendants “have detained, and still do detain,” in conformity to the precedents in detinue. And it is contended, with mueh ingenuity, that these words, ex vi termini, import a wrongful detentionand a wrongful detention is a conversion, and not merely evidence of it, and thus the declaration is substantially good in trover. 'Conversion and detention are not convertible terms. — . Detention may be evidence of conversion, but it is not conclusive of the fact. Setting forth a detention is not an averment of the fact of conversion, and conversion must be averred in a declaration in trover. It is the gist of the action. The declaration accords with the precedents in detinue, and is different from the forms prescribed in trover. The same declaration will not answer for either action. This is a good declaration in detinue, it.cannot be admitted that it will answer in trover. To avoid confusion, the boundaries of actions should be distinctly marked, and carefully preserved. The variance is fatal.

The Plaintiff issues his writ as administrator of his intestate, Nancy Glisson, and then declares in his own *161right. The writ and declaration are parts of the record of the same suit. Each sets forth a different right of action, and they are repugnant to eacli other. Establishing the position, that the writ is a part of the record, forbids this departure from it in the declaration. By confounding different and distinct rights in the same, action, the important purposes of pleading may be defeated, and confusion may be introduced. It is believed this also is a fatal variance.

It is contended, that the variances between the writ and declaration are cured after verdict, by statute 5, Geo. 1, ch. 13. In Dudley v. Carmolt, (1 Mur. 340) the writ w'as tested in the name of the Clerk, and it was signed by the deputy Clerk in his own name; and it was decided, that the statute of 5 Geo. 1. is in force in this state, and cures the defect in the writ. The Defendant should have taken advantage in that case, of the defect in the writ, by plea in abatement; but he pleaded in chief, and thereby waived the right of subsequently making this objection. The decision of ihe Court to render judgment for the Plaintiff is deemed correct, upon the general rules of pleading, without invoking the aid of the statute of Geo. 1. to cure the defect after verdict. In Stamps v. Graves, where the writ was in debt, and the declaration in assumpsit, this Court, with much deliberation decided, that the variance was fatal, even after verdict, and was not cured by .the statute of 5 Geo. 1.— That the statute was, for certain purposes, in force here, and as to all matters of form was to have full effect and complete operation; but this was stick a matter of, substance, as could not be aided here by that statute.

As to the motion to amend the pleading, under the act of 1824, ch. 3, so as to make it an action of trover, in the Plaintiff’s own right, the question has been settled by this Court, in the case of Matlock v. Gray et al. (4 Hawks 1.) It is there decided, that this Court has not *162power to make the amendment. The party can take no-thine by the motion.

Per Curiam. — Let the judgment below be reversed, ■ , , and the judgment be arrested.