Findlay v. Pruitt

ORMOND, J. In England, and in some of the States of the Union, a variance between the writ and declara [198] tion, is reached in a summary mode, by motion to.the court to set aside the declaration for irregularity. But this proceeds from the refusal of the court to allow oyer to be craved of the writ, without which the variance cannot be shown, unless, as in this case, it appears from the declaration, when it may be reached by motion— (See Willard vs. Missani, 1 Cowen, 37.) . The act of the Legislature (Aik. Dig. 278,) which requires process irregular^ or improperly issued, to be abated on the plea of the defendant, must, in this State, introduce a different rule; and advantage may’be taken Of an irregularity of this kind, by a plea in abatement— if compelled by the court. This has been attempted, in this case, but in such a careless and inartificial manner, that no benefit can be derived from it. It is in these words: “ The defendant, by consent of plaintiff, pleads a misnomer, in setting out the name of A. G. Pruitt, in the original writ, in this, that his true and only name is Ansel B. Pruitt, and not A. G. Pruitt, which is taken in short, and sworn to.” In pleas in abatement, which do not reach the merits of the case, but merely delay the action, great strictness has always been required,'and form becomes material. What then is intended to be waived by the consent of the parties — the mere form of the plea, or both form and substance ? for unless the latter was the intention of the parties, the plea cannot be sustained. It is essential to the validity of the plea; that the writ should have been set out on oyer: this has not been done, and we cannot presume it was waived. If it be intended to raiso quesr tions of this kind, the plea must eifhej.* be drawn out in [199] extenso, or at least, all the material facts and allegations necessary to constitute the plea, must be stated. The court, therefore, did not err in sustaining the demurrers to the plea in abatement; nor did the court err in overruling the demurrer to the declaration. It is well settled, that advantage cannot be taken of a variance between the writ and declaration, but by plea-in abatement. A demurrer, in the language of Mr. Chitty, objects to the sufficiency of the declaration, plea, or replication, to whioh it is filed, upon the face of the pleading, and without reference to extrinsic matter. But the declaration in this case, unaided by the writ, showing: that the writ and declaration do not correspond, is not objectionable, and the demurrer was therefore properly overruled. The remarks made in reference to the pleadings, apply with equal force to the statements in the bill of exceptions, showing the admission of testimony, objected to by the plaintiff in error. It is difficult to asceitain, with any thing which approaches to certainty, for what purpose the defendant-below was permitted to give evidence to impeach the character of the plaintiff. The language of the bill of exceptions is, that the defendant proved “ that at the time the violence toas committed by defendant on plaintiff,, in a public crowd, it was generally suspected by the: crowd, that the plaintiff was guilty of stealing money from defendant’s store.” We might perhaps conjecture, that as- one of the counts: of the declaration charged the defendant below with false imprisonment, that this evidence was intended to200 justify the arrest and imprisonment for the supposed felony ; but there is no plea of justification interposed, unless the agreement to permit the special matter to be given in evidence under the general issue, can be so considered. It is not, however, necessary, to consider the effect of this agreement, as the evidence would have been improper, under a plea of justification. It is true, that an arrest may be justified,-where there is a well grounded belief, founded on pregnant circumstances, that a felony has been committed, but mere suspicion wiil not afford a justification. At all events, whether the belief of the guilt of the defendant in error was well or ill founded, it would not authorise violence to be used, unless the arrest was opposed by resistance, which is not stated. It would appear, therefore, that the evidence was offered upon the first count in the declaration: assuming this to be the case presented by the record, the evidence was improperly admitted; but as the defendant below was thus permitted improperly to assail the character of the plaintiff below, the court did not err, ip permitting the plaintiff to countervail it by evidence of good character. It is possible, that we may have mistaken the case intended to be presented to this court for revision ; but if it be so, the fault must rest on those whose duty it was to present the points they intended to raise upon the record, with reasonable certainty. If this is not done, so as to enable this court to decide, without danger of mistake, the exception taken in the court below, or point reserved, will be disregarded, for uncertainty. The judgment of the court below is affirmed.