
    The People on the relation of William Smith v. The Judge of the Wayne Circuit Court.
    
      declaration: Writ: Form of action: Variance: Practice. A declaration cannot be set aside on motion for variance from the writ in the form of action ; guch variance in non-bailable actions is entirely immaterial; and even in bailable actions it would operate only to discharge the bail and not to render the 'declaration a nullity. '
    
      Heard and decided April 16.
    
    Application for mandamus.
    The relator brought suit in the Wayne circuit against Zina Lloyd, by summons in a plea of “trespass on the Case,” which was duly served. He afterwards declared in an action for breach of covenant. Defendant's counsel moved to set aside this declaration, on account of its variance from the summons in respect to the form of action, which motion the respondent granted, after full argument, and an order was entered in said cause setting aside the declaration and striking it from the files. The only ground upon which this order was granted was the variance aforesaid. The relator now applies for mandamus to compel respondent to vacate said order and re-instate the declaration.
    
      A. F. Wilcox, for tbe relator.
    
      Frvin Palmer, for the respondent.
   The court

held that á declaration could not be set' aside for variance from the writ; such variance in non-bailable actions is entirely immaterial; and even in bailable actions it would operate only to discharge the bail and not to render the declaration a nullity.

Mandamus granted.  