Culver v. Whipple

Opinion by

GeeeNe, J.

A summons was issued in this case against Whipple, in an action on the case on promise. A writ of attachment appears also tohavebeen issued and executed in due form under the statute. But the declaration filed was in an action of debt-. The defendant demurred to the declaration, craved oyer of the writ of summons, and assigned as cause of demurrer, the variance between the writ and declaration, in that, the writ is in trespass on the case on promise, and the declaration in debt-The plaintiff by his counsel, objected to the filing of the demurrer, as inapplicable to the question therein raised. The court overruled the objectionj'sustained the demurrer, and gave judgment for the defendant. This decision is assigned as error, and the objection raised, that a variance between the writ and declaration cannot be taken advantage of by demurrer.

Upon a careful examination of authorities, we find but little difficulty in arriving at a conclusion. Tbe recent practice in tbe English courts, appears to be uniform, and tbe rule barely meets with an exception in this country, that tbe objection of variance between tbe writ and declaration, “is not aground of demurrer to tbe declaration, but merely of a summary application to set aside tbe declaration for irregularity.” 1 Chit. Pl. 254. Chitty remarks that by this practice, tbe plaintiff may abandon bis first process and issue a new writ, adapted to tbe form of action set forth in bis declaration.

L. Ciarle, for plaintiff in error.

Wilson c& Smith, for defendant.

But we think it would be a more judicious practice in such cases, and authorized by our statute of jeofails, for tbe courts to correct such deviation, by ordering tbe writ to be amended at tbe cost of tbe plaintiff; or if occcasion-ed by tbe clerk, in neglecting to follow the praecipe, then at bis cost. And if, in the opinion of tbe court, such amendment occasion surprise to tbe defendant, a continuance of the cause should be ordered till tbe next term. By such a practice, we think,much unnecessary inconvenience and expense would be saved to parties.

We think tbe court erred in acting upon, and sustaining tbe demurrer.

Judgment reversed.