
    John H. Slater vs. John H. Fehlberg et al.
    
    PROVIDENCE
    JANUARY 7, 1903.
    PRESENT: Stiness, 0. J., Tillinghast and Rogers, JJ.
    (1) ' Pleading and Practice al Law. Variance. Trespass. Case.
    
    Where the form of action set out in the writ is trespass on the case, while that set out in the declaration is trespass, the variance is -fatal.
    (2) Statute of Jeofails.
    
    The statute relating to amendments is not sufficiently broad to enable the court to permit the form of action to be changed.
    (3) Variance.
    
    A variance between the form of action set out in the writ and declaration may be taken advantage of at any stage óf the case, irrespective of the fact that the general issue and other pleas have been previously filed by defendant.
    Trespass on the Case. Heard on petition of plaintiff for new trial, and petition denied.
   Tillinghast, J.

There is a fatal variance between the writ and declaration in this case, and hence we are of opinion that the action must be dismissed.

The form of action set out in the writ is trespass on the case ; while that set out in the declaration is trespass.

Our statute relating to amendments is not sufficiently broad to enable the court to permit the form of action to be changed. Wilcox v. Sherman, 2 R. I. 540 ; Thayer v. Farrell, 11 R. I. 305 ; Barnes v. Mowry, ib. 422 ; Bowling v. Clarke, 13 R. I. 650 ; Vaill v. Town Council, 18 R. I. 405 ; Wilson v. Ry. Co., ib. 598. See also Hobbs v. Ray, ib. 84.

Leon L. Mott, for plaintiff.

Francis Colwell, Albert A. Baker, and Frank T. Easton, for defendant Parker.

Frederick Bueckert, for defendant Pehlberg.

As a variance like the one in question may be taken advantage of at any stage of the case, the mere fact that the general issue and other pleas were filed by the defendants before taking the objection is immaterial. Rathbun v. Ry. Co., 19 R. I. 463.

The case is remanded to the Common Pleas Division, with direction 'to dismiss it.  