
    S. B. Emmons, v. James S. Bailey.
    It is necessary, in the action of debt, to insert in the writ the sum certain. The variance in such a case may be taken advantage of by demurrer. The Court will, however, upon payment of all costs, permit the plaintiff to amend his writ, so as to produce conformity between that and the declaration.
    Tried before Mr. Justice Evans, at Lancaster, Spring Term, 1847.
    Debt on sealed note.
    The writ in this case, was to “render to the plaintiff one hundred and twenty-six and fourteen cents,” omitting, the word dollars, after six. The declaration set out the amount correctly, one hundred and twenty-six dollars and fourteen cents. To the declaration, the defendant demurred, and set out for causes of demurrer this variance between the writ and declaration. A copy of the demurrer is annexed, and forms a part of this report. The presiding Judge thought the amount of the debt demanded should be set out correctly in the writ, which by our law forms apart of the record,—but it did not seem that on principle, the variance was a proper subject for demurrer. But the cases quoted, Young v. Gray, and some others from our own reports, seem to have decided that such variance is the subject of special demurrer, and he decided in conformity with these decisions.
    
      Copy Demurrer. Cause assigned, to wit: That the said declaration varies from the writ, and instead of corresponding with the same, contains a charge that the said defendant is indebted to the said plaintiff in an amount much greater than is set forth in said writ, which said charge is wholly distinct and irrelevant to that contained in said writ, by reason of which the said defendant has been taken by surprise, and also that the said declaration is in other respects uncertain, informal, and insufficient,—and this he is ready to verify,'—wherefore, by reason of the insufficiency in this behalf, the said defendant prays judgment, &c.
    The plaintiff moved to reverse the decision of the Circuit Judge sustaining the defendant’s demurrer, on the following grounds, viz:
    1st. Because the cause assigned could not be taken advantage of by demurrer.
    2d. Because his Honor erred in holding the cause assigned, sufficient cause ol demurrer.
    3d. Because his Honor erred in holding that there was a legal variance between the writ and declaration.
    Clinton, for the motion.
    The writ need not have set out the precise sum: it is therefore an improper subject of a demurrer. The writ is only to compel the appearance of the defendant. If it had said for debt, or for slander, or any such special charge, without specifying the sum, &c., it would have been sufficient. There cannot be a variance between the writ and declaration as to the form of action, I admit. In this case the improper sum is mere surplusage. The declaration informs defendant of the precise complaint, and the warrant or writ only cites him to appear; Stephens on Pleading, sec. 6, paragraph 14 and 15; 3 Black Com., chap. 18; 2 Brev. Dig., 165; 2 Hill’s Rep., 585. If this was the amount in cents only, the Court would not have jurisdiction, (an absurdity;) the defen-should have then moved to quash the writ or set it aside. The entering an appearance, instead, is a waiver of the objection to the writ; Wayne v. Kirby, 2 Bailey, 551; 2M’Cord, 15; Cherry v.-, 1 Brev., 91; Boag ads.-, 2 M’Cord, 380; Young v. Gray, 1 M’C., 211, does not apply; it veas an action on the case, and the declaration was in covenant; it was a surprise and departure; so also in Boag, the writ was in case and the declaration in trespass vi cl armis; 2 M’C., 380. The demurrer here does not point out the variance as it should have done; the defendant finds fault and commits one himself; 5 Bacon’s Abridg., 461; 3 Black Com., chap. 27; 1 Tidd’s Prac., 021; 3 Chitty’s Plead., 145; furnished the precedent of the demurrer. The demurrer is not signed by council, and is not a demurrer; therefore, 1 Selwyn Prac., 335, and 1 Tidd’s Prac., 051, it should have been treated as a nullity, (.joining may have cured it.) It is necessary only in bail writs, to slate the exact amount sued for; 3 Black Com., 290; 1 Henry Black Kep., 402; Grim-kc’s Pul). Laws, 70. It veas not necessary to set out the cause of the action in the writ until this statute; 1 Chitty’s Plead., 228, 317 and 390; 2 Mills Con. Ilcp., 247; inconsiderable variance not vitiating the case. Tins is too insignificant. Law Library, 40, containing Brown's Legal Max., “Mala Grarn-malica not filial chai lam, &c., &c.
   Withers J.

delivered the opinion of the Court.

The first question proper to be considered in this case, is, whether it is necessary, or should be regarded as material, that the sum of the debt sued for should be stated in a writ in action of debt. In England, the precipe for a writ in debt specifies the sum of the debt, and so does the capias issued thereon, and this appears from the forms of both given by Wentworth in his work on Practice. And though it is true that the ac eliam clause was introduced by the Statute of 13 Charles 2, statute 2, ch. 2, which had in view the protection of defendants from oppression as to bail, and, therefore, required the certainty and true cause of action to be set out, else the party defendant should be discharged on security for the sum of forty pounds, and no more; and although it is true, that here bail is founded in any case, not on the ac eliam clause of the writ, but on affidavit, yet so inveterate and uniform, here and in England, has the usage and practice become, of inserting in the writ in debt the “sum certain” sued for, that we do not feel at liberty now to regard it as unimportant. The action of debt is supposed to be for a sum certain, which an action sounding in damages cannot be, and it may be well to inform the defendant in the writ, when, as in this action, it can be done, of the true sum demanded, to the end that, if he will, he may discharge the demand forthwith, or not contesting it, may acquiesce in the condition of judgment without resistance. Bu t, supposing that the debt ought to be correctly stated in the writ, the further inquiry is, can the variance be regarded as sufficiently grave to warrant a demurrer, or shall it be deemed too frivolous to support that plea? The observation of Mr. Cbitty in his Pleading, yo.L 1, 254, has not escaped us, to wit, that the declaration must correspond not merely with the cause and the form of action in the affidavit, but with the “ac etiam part of the latitat, or other process, for otherwise the defendant will be discharged out of custody on filing common bail.” But the cases referred to as supporting the proposition, disclose this, that the Court will not, upon such variance, set aside the proceedings, upon rule; (see Spalding et al, v. Mure, et al, 6 S. R., 363; and Hole v. Finch. 2 Wilson, 399.) In the last case, it is stated by the Court, that formerly it was the practice to set out the whole original writ in the same roll with the count, and if a variance appeared between the writ and count, advantage might be taken thereof, either by motion in arrest of judgment, writ of error, plea in abatement, or demurrer. But, that afterwards it was determined, that if the defendant would take advantage of a variance between the writ and count, he must demand oyer of the writ and show it to the Court. In the case of Young v. Gray, 1 M’Cord, 211, Judge Nott remarks, that here there is no necessity to crave oyer of the writ for the purpose of exhibiting it to the Court, because it is already in Court, and constitutes a part of the record. It need not be done (he says) for the purpose of discovering the variance, because the plaintiff is bound to furnish him with a true copy when the writ is served. It would seem, therefore, that wheresoever upon oyer of the writ, a party may demur for a variance between that and the declaration, he may have the benefit of that objection in that form, though not, perhaps, on rule or motion to set aside the proceedings. And as we have determined that the variance in this case is not wholly immaterial, it follows (hat the demurrers must be sustained. But a question remains, to wit, whether we shall not permit the party to amend his writ so as to produce conformity between that and the declaration. If we have the power, according to the rules of law, we have every disposition, for there is the least possible merit in the subject matter of the demurrer in this case. We find in the case of Wilson v. Grimke, 2 Brev. Rep., 201, sufficient authority and satisfactory reasons to warrant, the leave to amend in this case. Here the defendant is in Court, he has in the declaration full notice of the cause of action, can pretend to no surprise hereafter, and will sustain no injury in granting to plaintiff the favor which was sought from this Court, in case the question of law should be resolved against him.

It is accordingly ordered, that the motion to reverse the decision below be dismissed; but that the plaintiff, upon payment of all costs, have leave to amend his writ, if he pleases, so as to make the same in the ac eliam clause correspond with the count in his declaration.  