
    Johnson vs. Planters Bank.
    The statute of 5 George I, is in force in Tennessee, and after verdict no judgment can he arrested from any variance in the declaration from the writ either in form or in substance.
    On the 25th day of June, 1839, the Planters Bank of Tennessee issued a writ, returnable to the circuit court of Williamson county, against David Johnson, John Ray and Henry R, W. Hill, summoning them to appear before the said court at its July term, “to answer the president and directors of the Planters Bank of a plea of trespass on the case to their damage two thousand live hundred dollars.” H. R. W. Hill acknowledged service of the summons. It was executed upon Johnson, and returned not found as to Ray. The plaintiff entered a nole p-osequi as to Ray and filed a declaration in the form of an action of debt against Hill and Johnson at the July term, 1839, alleging that David Johnson, on the 25th day of April, 18.38, executed two several obligations, each for one thousand dollars, by which he bound himself to pay said sums of money to John Ray at the Planters Bank, the one nine months after date and the other twelve; that Ray endorsed and delivered these obligations to H. R. W. Hill & Co. and H. R. W. Hill & Co. endorsed them and delivered them over to the Planters Bank; and that at the maturity thereof they were protested for non-payment. Plillmadeno defence, and judgment was entered against him by nildioit' On the record are the following words: “Payment and set off; Campbell for Johnson. Replications and issues; Foster and Fo gg.”
    On Thursday, the 14th day of November, 1839, David Johnson, by his attorney, “moved the court for leave to withdraw the words “payment and set off” filed in this cause as pleas. This motion'was overruled, and on the 20th November a verdict was rendered by a jury upon the issues joined for the sum of two thousand dollars debt, and eighty-seven dollars and thirty-two cents damages. A motion was then made to arrest the judgment of the court. This motion was also overruled and judgment rendered in conformity with the verdict, and an appeal in nature of a writ of error taken to the supreme court by Johnson alone by virtue of the prov¿gjons Qf ^ act 0f 1827, ch. 52.
    
      J. W. Campbell, for plaintiff in error.
    1. The court below erred in not permitting the defendant to withdraw the words “payment and set off,” filed as pleas. They were nullities and should have been withdrawn upon the application of the party presenting them in lieu of pleas. 6 Yer. 314.
    2. The writ is in case, the declaration in debt. The declaration here varies from the writ not in form only but in substance. The declaration changes “the nature of the action,” contrary to the provisions of the act of 1809, ch. 49, Nich. and Car. 88. This statute does not permit the plaintiff to substitute debt for case, or covenant for debt at his option. He cannot change the character of his action indicated by his writ. This objection is fatal on motion in arrest of judgment or upon error. Stamps vs. Graves, 4 Hawks, 102; Herring vs. Glisson, 2 Dev. 156. These decisions are in accordance with the common law. 1 Lord Ray. 4:1 Sanders, 317, note 3: 7 Term Rep. 299: 2 Wilson, 395: Tidd’s Practice, 103,124, 93, 301, 77, 80. This is a material variance and therefore not cured by a verdict. 6 Com. Dig. 44: Croke Eliz. 185, 823,330,622:1 Tidd, 102. Though it may be insisted that this court has decided that appearance cures want of process, yet the doctrine is well settled in England that “if there is a vicious original on file, the court will not presume a good one; though had there been none,” the defendant appearing, “the court would have presumed one and a good one.” 1 San. 517.
    N. B. Fogg, for defendant in error.
    Appearance andplead-ing over cure defects of process. 3 Hay. 203: 5 Yer. 104: 3 Hay. 44: Garland vs. Chattle and Clough, 12 Johnson 430:12 Peters, 300:2 Wheaton, 45. A variance between the writ and declaration is pleadablein abatement only. 11 Wheaton. The statute of 5 George I, provides that “after verdict judgment shall not be stayed or reversed for any defect or fault, whether in form or in substance, in any bill, writ, original or judicial, or for any variance in such writs from the declaration or other proceedings.” This is a statute of feoffails in force here and in North Carolina. Act of 1794, ch. 1: 4 Dev. 35, West vs. Rutledge.
    
   Green, J.

delivered the opinion of the court.

The only question in this case arises upon a motion in arrest of judgment for a variance between the writ and declaration. The writ is in case, and the declaration in debt. The defendant pleaded over to the declaration, upon which issue was joined, and there was a verdict for the plaintiff. By an act of 1794, ch. 1, all the statutes of Great Britain for the amendment of the law commonly called statutes of feoffails, and which theretofore had been in force in North Carolina, are declared to be in full force. The statute 5 George I, ch. 13, (5th vol. Brit. Stat. 43,) declares that no judgment shall be “stayed or reversed for any defect or faulty either in form or substance, in any bill, writ, originial or judicial, or for any variance in such writs from the declaration or other proceedings.” In the case of West vs. Rutledge, 4 Dev. 31, the supreme court of North Carolina enter into a full examination of the history of their legislation upon this subject, and came to a most satisfactory conclusion that this statute had always been in force there. It follows as a consequence that, by force of the act of 1794 above referred to, this act of 5 George I, is in force here. But it is insisted that this statute is limited in its operation by the act 1809} ch. 49, sec. 21, to cure a variance of form only; for by the latter act, it is provided that no amendment shall be allowed whereby the nature of the action shall be changed. Hence it is inferred that as this writ was not amendable by the act of 1809, the variance cannot be cured by the act of 5 George I. It is true, Jhis writ could not have been amended so as to change the nature of the actiop, and had the defendants in the court below pleaded in abatement they would have defeated the plaintiff’s action. But they chose to plead to the declaration in bar, and to have a trial of the cause upon its merits. Having done so, and a verdict having been found against them, the situation of the parties is very much changed, so that the statute of 5 George I, may have its full operation without at all conflicting with the act of 1809. The plaintiffs in error rely on the case of Stamp vs. Graves, 4 Hawks’ Rep. 102, and the case of Herring vs. Glisson, 2 Dev. 156, as being opposed to and of more authority than the case of West vs. Rutledge, 4 Dev. 41. It is sufficient to say, that in the latter case the court reviews the decisions in the two former cases, and upon the most unanswerable reasons, overrules them; those casees are therefore to be regarded as of no weight whatever. We conclude therefore that the statute 5 George I, is in force, and that after verdict no judgment can be reversed for any variance in the writ from the declaration either in form or substance.

Let the judgment be affirmed.  