
    William P — —r. vs. Charles Bogan.
    A variance between the writ and declaration can not be taken advan-' tag-e of in arrest of judgment; it must be by plea in abatement or demurrer.
    The words vi et annis, do not necessarily make a writ in trespass; a, writ may still be case and contain these words as surplusage.
    Tried before Mr. Justice Colcdck, Spartanburgh district, Spring Term, 1822.
    THIS ivas an action by the father to recover damages of the defendant, for debauching his daughter, whereby he. lost her services. The plaintiff had obtained a judgment, by default. The defendant filed a general demurrer to the declaration, (as it stated,) which was intended to reach a defect in pleading", which was alleged t‘o exist, to wit ; a Variance between the writ and declaration.
    The demurrer was overruled and the testimony given.
    It was proved by the girl herself, that she had been delivered of a bastard child, and that the defendant was the father of it, and that she had Been very sick for some time after. It also appeared from other testimony, that the defendant had made honorable address to her, and it was" believed "would marry her; that she was about fifteen years of age at the birth of the child.
    On the part of the defendant, it appeared that two other sisters had had illegitimate children, and that their general reputation had been bad. That the young men who visited the house were allowed too much familiai’ity. But it was not proved that the father had any reason to suspect the defendant of dishonorable views, or that the mis? fortune had been induced by his conduct.
    The jury found a verdict for the plaintiff for $>300, and a motion was now made for a new trial and in arrest of judgment, on the following grounds :
    1st. Because the declaration varies from the original writ; as the one is in case and the other in trespass vi el armis.
    
    2nd. Because the court ought to have supported the demurrer to the declaration.
    3rd. Because the damages were excessive; as it was clearly proved that the plaintiff’s daughter was a girl of no character, and was of no real service to the plaintiff.
    4th. Because the verdict was contrary to law and evidence, and the express charge of the Judge, who stated to the jury that if they believed that the father had connived at the conduct of the defendant towards his daughter, then they ought uot to give more than nominal dapiages, and. this was clearly proved.
   Mr. Justice Colcock

delivered the opinion of the court;

Upon the first ground, it is only necessary to refer to the cases of Anthony Haney vs. John Townshend, (1 McCords Rep. 106,) and the case of Young and Grey, (Ibid, 211,) by which it will appear that such variance is not a ground of arrest, but may betaken advantage of by plea in abatement or special demurrer.

On the second ground, the demurrer complained that the declaration was bad, but on examination, there appeared no defect in form or substance. It was contended that under this demurer the court was bound to look back and discover the alleged variance. This might have been true as to a defect in the substance but not as to form, (1 Chilly, 6.40.) But if the court had been bound to police what is alleged to be a variance, I am of opinion that there is in pojnt of fact no variance ; for although the words vi et armis are used in the writ, it is in all other respects a writ in case, and these words may be considered as surplusage.

Fleming, for the motion,

Thompson, contra,

As to the two last grounds, the facts were all submitted to the jui’y who knew the parties and witness, and were of course well acquainted with the manners and customs of the country, consequently wore qualified to decide whether there was any connivance on the part of the father. Having decided that there was none, the damages cannot be considered as excessive.

The motion is dismissed.

Justices Nott, Huger, Johnson and Gantt, concurred,  