Wilson Shober v. . Moore .

If this were an action at common law, began by general process, the plaintiff might have declared qui tam or the defendant might have been declared against, in his representative character. But the rule does not hold e converso, for if the process is, to answer the plaintiff qui tam and the declaration is in his own name only, the variance would be fatal. The rule was, that where the process was special, that is to answer the plaintiff suing in a particular capacity or calling upon the defendant to answer in some particular capacity, the declaration must conform thereto. But where the process is to answer generally, the declaration may be particular, and if against the defendant in several characters it does not contradict the general process, and is no variance. 1 Tidd's Pr. 450.

But in those cases where there was a variance between the writ and declaration, the rule was, not to move to set aside the declaration, as was done here, and for which there seems to be no precedent, but the motion was to abate the writ. The defendant craved oyer of the writ and if upon reading it the writ contained any conditions not contained in the declaration, he took advantage of the variance by plea in abatement of the writ. 3 Bl. 299; 2 Lil. Abr. 629.

But this indulgence having been abused and made an instrument of delay, the Courts of Common Law made a rule that oyer should not be granted of the original writ, which rule had the effect of abolishing pleas in abatement, founded on facts which could only be ascertained by the examination of the writ itself. In consequence of this rule, it was afterwards held, that if the defendant demanded oyer of the writ, the plaintiff might proceed as if no such demand had been made. Doug. 227-`8; Bro. Abr. tit. Oyer, 692; 2 Ld. Raym. 970; 2 Wils, 97; Co. Inst. 320; Gilbert C.P. 52.

So if this was an action at Common Law the defendant's motion would fail; 1st. because the matter alleged does not constitute a variance; 2d. if it did it could only be sued as ground of plea in abatement of the writ, and not of the declaration.

But under our new Constitution and Code, we have adopted substantially the practice and procedure of the Courts of Equity and not of the Courts of Common Law. In Equity the bill precedes the subpoena, which issues to bring the parties defendant into court. The prayer of the bill is not "Your Orator, therefore, prays that he may have such and such relief; but it is to the end therefore that the defendants may answer the interrogatories and that your Orator may have the specified relief, may it please your Honor to grant a writ of subpoena requiring the defendant to appear by a certain day and answer the bill, and abide by the decree of the Court." Adams Eq. 309. The subpoena is used to designate and bring the parties into court only, it neither specifies, as the old common law writ frequently did in what right the plaintiff claims relief; nor the right in which the defendant is sought to be charged. These matters are set forth in the bill only, and the subpoena points to the bill as containing the causes of suit which are to be answered. As then it is clearly not the office of the subpoena to specify the plaintiffs claim or the defendants liability, there can be no such thing as a variance on that account; and such a motion as the present is an unheard of proceeding in Equity and would not be there tolerated.

The only difference between the practice under the Code, and in the Court of Equity is, that by the Code the summons does not follow butprecedes the complaint. "It shall command the sheriff to summon the defendant to appear at the next ensuing term of the Superior Court to answer the complaint of the plaintiff." Bat. Rev., chap. 17, sec. 2; C.C.P., sec. 73. In both Courts its only operation and office is to give notice of an action begun, the parties to it, and where the complaint will be filed.

In our case these purposes have been answered and the defendants have had every privilege allowed by the regular course of the court. Their objections seem captious, and for the evident purpose of delay.

The whole scope and design of the new Code is, to discountenance all dilatory pleas, and to afford the parties a cheap and speedy trial, upon the merits of their matter in controversy. To effect this end it is the duty of all the courts to allow amendments in the liberal spirit clearly indicated in the Code. C.C.P., secs. 128 to 136. There is error.

PER CURIAM. Judgment reversed and case remanded.