
    Hines v. Kinnison and Another.
    According to the act of 1843, if a writ be in trespass, and the declaration describe a cause of action in case, or if a writ be in case, and the declaration describe a cause of action in trespass, the declaration is not objectionable on account of the variance.
    The said statute renders it immaterial whether the action be named trespass or case in the writ.
    The rule as to the joinder of counts in trespass and case is not affected by%said statute.
    Counts in trespass and trover cannot be joined.
    ERROR to the Yermillion Circuit Court.
   Blackford, J.

This was an action of trespass on the case brought by Kinnison and another. The declaration contains four counts. The first charges that the defendant, Hines, on, &c., at, &c., by his agent and servant, seized and took certain goods and chattels, to wit, 500 bushels of corn, the property of the plaintiffs, then and there standing upon the stalk in the field where the same had grown, &c., of great value, &c.; and afterwards, to wit, on, &c., at, &c., sold said goods and chattels, and converted the same to his owlr use. The fourth count is in trover. There was a demurrer to the declaration, but the demurrer was overruled, and final judgment rendered for the plaintiffs.

The first count is in trespass, and it cannot therefore, unless authorized by statute, be joined with the count in trover. Gould, 220.' The statute on which the plaintiff relies to show there is no misjoinder is as follows: “In all actions of trespass and trespass on the case, the declaration shall be deemed equally good and valid to all intents and purposes, whether the same shall be in form a declaration in trespass or trespass on the case.” R. S. 1843, p. 691. According to this statute, if the writ be in trespass, and the declaration describe a cause of action in case, or if the writ be in case, and the declaration describe a cause of action in trespass, the declaration shall not be objected to on account of the variance. The statute renders it immaterial whether the action be named trespass or case in the writ. The rule as to the joinder of counts in trespass and case remains as it was before the statute.

W. P. Bryant, J. A. Wright, and 8. F. Maxwell, for the plaintiff. (

D. Brier, for the defendants.

Per Curiam. The judgment is reversed'with costs. Cause remapded, &c.

The judgment is reversed'with costs. Cause remapded, &c.  