Ridgely’s Notebook I, 42
High Court of Errors and Appeals of Delaware.
June 13, 1817.
Writ of error to the Justices of the Court of Common Pleas, tested August 7, 1813, returnable August 14.
This case should have followed immediately after the case o John Wilds v. William Green. It was submitted with that cause, without argument, June 13, 1807.
The writ in the Court of Common Pleas is a capias against John Wilds to answer unto Benjamin Blackiston, guardian to Elizabeth Green, of a plea that he render to him $1000, etc. Writ is endorsed, May 27, 1812, Elizabeth Green by her guardian Benjamin Blackiston, Esq. v. John Wilds, Esq. Capias debt. Cepi corpus. C. Battell, sheriff. The declaration is: And whereupon the said Elizabeth Green, by Benjamin Blackiston, her guardian, etc. — on a bond dated February 21, 1803, given to Elizabeth Green, a minor under the age of fourteen years, daughter of Elijah Green for $1000, for the faithful discharge of his duty as her guardian Oyer prayed and granted. Docket entry. Defendant pleads performance generally and specially. Replications generally and specially and issues.
The record goes on: And now to wit, May 13, 1814, the jurors by the sheriff summoned, impannelled and returned (here are the names of thirty jurors) being called, and only one of them, viz
Daniel Mason, comes and is sworn upon this jury. And the record
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proceeds, as in the case of Wilds v. William Green, with the order etc. for summoning tales de circumstantibus etc., except as to the number of tales.
Verdict for the sum in the narratio, to be released on payment of $295.56. Judgment nisi. The bond and condition do not appear on the record. No oyer of the writ is prayed.
The 1, 2, 4, 5, 6, 7, 8, 9, 11, 12 errors assigned, are the same, substantially as in Wilds v. William Green.
3. Error is, that by the record aforesaid it appears that the declaration aforesaid does not follow or support the writ, but varies from the said writ, and is not warranted thereby.
10. Error, that by the writ aforesaid the said John Wilds was attached to answer Benjamin Blackiston, guardian of Elizabeth Green (defendant in error), of a plea that he render to him $1000, whereas the judgment is rendered in favor of Elizabeth Green.
On June 13, [by] CHANCELLOR RIDGELY. The assignment of errors in this cause, in relation to the record, is similar to the errors assigned in the case of Wilds v. William Green, and therefore the observations made on that occasion apply here and need not be repeated. The variance between the writ and the record is the only material matter for consideration.
And if that variance were brought properly before the Court, it would be fatal. As, in error in trespass the writ was quare clausum fregit; the count was clausa fregit; for this variance the judgment was reversed. Cro.Eliz. 185; though this case seems to be doubted, the word clausum being nomen aggregativum and may contain many closes. Sty. 109 See “System of Pleading” or Doct.Pl. 41, 505. So the plaintiff demanded in the writ of £166.13.4 [and] in the declaration £171.10; this was a fatal variance, and judgment was reversed. Cro.Eliz. 198. So, action on the case that defendant had exalted his yard and made a ditch, whereby he conveyed filth etc., after verdict it was moved in arrest of judgment that the writ varied from the declaration. The writ was for raising the yard; the declaration for raising the yard and making a gutter. This was a fatal variance not aided by 18 Eliz., c. 14, which helps only where there is no writ, not where the writ and declaration vary in substance. Cro.Eliz. 82. (See Cowp. 178; 1 Term 235, 656 as to variance, though not directly in point in this cause.)
But to have the benefit of this variance, the defendant below should have craved oyer of the writ and spread it upon the record. 2 Salk. 658.
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In replevin, the declaration for taking averiarium ipsius.
Exception was taken that averiarium was nonsense. Holt, C. J., if the original had been averiarium, it had been naught. This is only a recital of the original, and the court will not judge upon a recital; but the way to take advantage is to crav oyer, for this recital is only a short intimation to the court of what kind the plea is. Powell, J., if this case had been by error out of the Common Pleas, in which case the plaintiff could not have taken advantage of this fault by oyer, then he must have alleged diminution and prayed a certiorari; and if the original returned had been so, the court would have reversed the judgment. 2 Salk. 701. (NOTE. Not in a court of error.) So, in 2 Wils. 85, defendant pleaded a variance between the writ and declaration without craving oyer of the writ. Plaintiff demurred. Held that the defendant should answer over, agreeably to the case of Bragg v. Digby, 2 Salk. 658, which is in point.
Formerly when the whole original writ was spread in the same roll with the count thereupon, if a variance appeared between the writ and count, the defendant might have taken advantage thereof by motion in arrest of judgment, or by writ of error, plea in abatement, or demurrer. 2 Wils. 394.5 Com.Dig. 327. 2 Lut. 1181. But afterwards it was determined that if defendant will take advantage of a variance between the writ and the count, he must demand oyer of the writ and show it to the court. 4 Mod. 248, 2 Salk. 658, 701. 6 Mod. 303. And in replevin for cattle, count for a grey horse, demurrer for variance, judgment for plaintiff. Parker, C. J., cited Salk. 701, and the court held that defendant cannot take advantage of a variance between the writ and count without craving oyer of the writ. And in 1 Str. 225, it was determined that a judgment could not be reversed by a recital of writ, but that the very process itself should be brought before the court. According to these authorities, the plaintiff in error ought, in the court below, to have demande oyer of this writ and then to have taken advantage of the variance, after having spread on the record the writ and shown that the count did not correspond with the writ. But this has not been done; and although in our loose way the writ and count are sent up to this court upon writ of error, yet this is the act of the clerk below and is not the act of the party, — that is, the party has not put the writ on the record and pointed out the variance or inconsistence of these two proceedings. Although our records are so loosely kept, yet it has always been deemed that the common technical rules apply to pleadings where pleadings are required to be in form, and therefore the plaintiff in error should have taken advantage O oyer of this error.
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But we observe that a praecipe is annexed to this record by which the clerk was ordered to issue the writ to answer to Elizabeth Green. When I examined, some time ago, this record, tha praecipe was not annexed to the writ, and my opinion is made in the case as if it were not there.
I think that the judgment should be affirmed.
JOHNS, C. J., and COOPER and DAVIS, JJ. of the Supreme Court, concurred.
Judgment affirmed.