
    
      Josiah Dawson, Jr. vs. W. F. Robert.
    
    A variance between the writ and declaration is ground for special demurrer, not for plea in abatement.
    
      Before Wardlaw, J. at Colleton, Fall Term, 1851.
    The writ returnable to the eleventh day of November next, bears date 24th October, 1850, requires the defendant to answer to Josiah Dawson, the younger, for uttering certain false, scandalous, defamatory and malicious words concerning the said Josiah, to his damage $5000, and is signed Tillinghast, plaintiff’s attorney.
    At the return of the writ in November, 1850, W. F. Robert entered an appearance. No declaration was filed till 7th April, 1851, when, on the petition of Josiah Dawson, Jr. setting forth that he had a good cause of action against William F. Robert, and was under age ; and that his father, Thomas Dawson, was willing to be his guardian' ad litem, an order was made entitled in the cause of Josiah Dawson, Jr. vs. W. F. Robert, to the effect that Thomas Dawson, the elder, be admitted to prosecute his said action of slander against the said defendant. On the same day, a declaration was filed, commencing “ William F. Robert was attached to answer to Josiah Dawson, the younger, in a plea, and thereupon Josiah Dawson, the younger, by Thomas Dawson, the elder, who is admitted by the said Court to prosecute for the said Josiah Dawson, Jr. complains,” &c.
    The defendant pleaded in abatement as follows:
    And the said William F. Robert, in his proper person, comes, and defends the wrong and injury, and prays judgment of the writ and declaration, because, he says, that Josiah Dawson, Jr. is now under the age of twenty-one years, viz. of the age of nineteen years and six months, and no more; and that he sued in this action by Tillinghast, his attorney; and that there is a material variance between the writ and declaration of the plaintiff, because in the writ the plaintiff sues by attorney, and m the declaration declares by his next friend; and this he is ready to verify. Wherefore, inasmuch as the said plaintiff being within age, has sued by Tillinghast, Esq. and because of the variance between the writ and declaration, this defendant prays judgment of the said writ and declaration, and if he to the same ought to be compelled to answer.
    To this plea the plaintiff demurred specially on the 14th of May, and assigned for causes of demurrer:
    1. Because the plea is not entitled in, or as of, any term of the Court, or time when the same was filed.
    2. Because the said plea is double in this, namely, that it alleges two grounds of objection: 1st, that said plaintiff sues by attorney; and, 2d, that there is a variance between the writ and declaration.
    3. Because said plea does not shew how said plaintiff should have sued and declared, so as to give said plaintiff a better writ and declaration.
    4. Because if the commencement of said suit were by original writ, the plea should have prayed oyer of the same, and set it forth.
    
      5. Because the said plea should have concluded by praying judgment of the said writ and declaration, and that they may be quashed.
    6. Because the said plea in abatement is not verified by affidavit.
    7. Because a variance between writ and declaration cannot be taken advantage of by plea in abatement; and also that the said plea is in other respects informal and insufficient.
    On the 24th May, 1851, the defendant swore to his plea in abatement, and joined in demurrer.
    At November term, 1851, the caseNvas called, and his Honor the presiding Judge, sustained the demurrer.
    The defendant appealed, on the grounds:
    1. That the plea in abatement is well pleaded in point of form.
    
      2. That the variance between the writ and declaration is good cause of demurrer.
    3. That the Court should have given judgment that the suit be quashed.
    
      Peligru, for appellant;
    cited Cro. Jac. 250; Com. Dig..Pleader, 2, c. 1, Abatement, c ; 1 McC. 211; 2 McO. 386, 206 ; 1 Saund. 317 a, note 3.
    Tillinghast, contra,
    cited 1 Tidd. 99 ; 1 Chit. PI. 401-5; 2 Hill, 485.
   The opinion of the Court was delivered by

Withers, J.

There is not, at present, a sufficient concurrence of opinion, either way, among the members of this Court, to warrant a judgment upon the question, whether the suing a writ by a minor, by attorney, and following the same in a declaration, by next friend appointed by the Court, presents such a variance as may be the subject of a successful plea to the declaration.

Not deciding, but assuming, the affirmative, we are of opinion, nevertheless, that the form of the plea, in the present instance, is misconceived, and that it is well met by the demurrer.

In several cases to be found in our books, we are aware it has been said, that an objectionable variance between the capias ad respondendum and the declaration may be properly the subject of a plea in abatement. Y et in the case of Sargent vs. Hayne, (2 Hill, 585,) the precise point came up, and was adjudged contrary to the dicta which it was there said had appeared in several prior cases. The following language was used in that decision: “In this State we have no original writ, properly and technically so called : our writ is merely process to bring the defendant in to answer. It is regarded as a part of the general record, and, in that point of view, it was held in Young vs. Grey, (1 McCord, 211), that the variance between the writ and declaration might be taken advantage of by special demurrer. That decision concluded that point, and it has ever since been regarded as settled law.” I take it tobe clear, (said O’aeall, J.) (hat a plea must be of something dehors the record. The variance between the writ and declaration is to be ascertained by inspection : if any existed to be pleaded, the defendant, as in Young vs. Grey, may demur.”

Since this was the point of that case, and was thus distinctly ruled, we think this Court under an obligation to respect it, and have reason to suppose that the profession has regarded the question to he settled. In Emmons vs. Bailey, (1 Strob. 422,) the defence was founded upon a variance between the writ and declaration, and a demurrer was employed as the means of presenting the issue.

This view of the case now before us supersedes the occasion of entering upon the learning which has been employed in the argument, and unites, as well those who think there is a variance in the present instance, as those of a contrary opinion, in agreeing that the motion be refused.

It is ordered accordingly.

O’Neall, Evans, Wardlaw, Frost and Whitner, JJ. concurred.

Motion refused.  