
    J. A. AND F. A. JOHNSON v. J. G. WILLOUGHBY.
    Jackson,
    September Term, 1876.
    TRESPASS VI ET ARMIS. Common law form. Code system. Variance.
    A declaration qua re clausum freg-it, in common law form, assuming- entry with, force, arms, etc., is supported by proof of an unlawful removal of plaintiffs’ house by defendant after a lawful entry, so as to support a recovery for the wrongful removal of the houses, and not for the wrong-ful entry.
   McFarland, J.,

delivered the opinion of the court.

After the opinion in this case was announced, a rehearing was granted and the cause has been again considered at the present term.

The first question urged for a reversal is, that the declaration is in the common law form of trespass quare clausum fregit, and that as the proof clearly shows that the defendant entered the premises under a contract and license of the owner, the action must fail. This would have been fatal to the common law action before the adoption of our Code, but by the Code all distinctions between forms of actions are abolished, and the plaintiff may file a declaration stating substantially the facts of his case, and if his proof corresponds substantially therewith, it will be admissible, and a recovery may be had.

While the proof in this case does not sustain that part of the declaration which avers the defendant’s entry upon the premises of the plaintiffs to have been with force and arms and unlawful, yet it does make a case for the wrongful removal of the plaintiffs’ houses after a lawful entry.

All the averments of the declaration were not proven, but the case made by the declaration and the proof were not so materially variant ás to authorize the rejection of the testimony. No recovery was had for the entry, but only for the wrongful removal of the houses. TJpon this the cause was tried, and if there was in any view an error, it was not one affecting the merits.

Upon the question whether the houses removed were parts of the freehold, we adhere to the former opinion.

Judgment affirmed.  