Dawson v. Robert

Court of Appeals of South Carolina

Dawson v. Robert

39 S.C.L. 258

DecidedJanuary 15, 1852

StatusPublished

This text of 39 S.C.L. 258 (Dawson v. Robert) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dawson v. Robert, 39 S.C.L. 258 (S.C. Ct. App. 1852).

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Opinion

The opinion of the Court was delivered by

Withers, J.

There is not, at present, a sufficient concurrence of opinion, either way, among the members of this Court, to warrant a judgment upon the question, whether the suing a writ by a minor, by attorney, and following the same in a declaration, by next friend appointed by the Court, presents such a variance as may be the subject of a successful plea to the declaration.

Not deciding, but assuming, the affirmative, we are of opinion, nevertheless, that the form of the plea, in the present instance, is misconceived, and that it is well met by the demurrer.

In several cases to be found in our books, we are aware it has been said, that an objectionable variance between the capias ad respondendum and the declaration may be properly the subject of a plea in abatement. Y et in the case of Sargent vs. Hayne, (2 Hill, 585,) the precise point came up, and was adjudged contrary to the dicta which it was there said had appeared in several prior cases. The following language was used in that decision: “In this State we have no original writ, properly and technically so called : our writ is merely process to bring the defendant in to answer. It is regarded as a part of the general record, and, in that point of view, it was held in Young vs. Grey, (1 McCord, 211), that the variance between the writ and declaration might be taken advantage of by special demurrer. That decision concluded that point, and it has ever since been regarded as settled law.” I take it tobe clear, (said O’aeall, J.) (hat a plea must [261]*261be of something dehors the record. The variance between the writ and declaration is to be ascertained by inspection : if any existed to be pleaded, the defendant, as in Young vs. Grey, may demur.”

Since this was the point of that case, and was thus distinctly ruled, we think this Court under an obligation to respect it, and have reason to suppose that the profession has regarded the question to he settled. In Emmons vs. Bailey, (1 Strob. 422,) the defence was founded upon a variance between the writ and declaration, and a demurrer was employed as the means of presenting the issue.

This view of the case now before us supersedes the occasion of entering upon the learning which has been employed in the argument, and unites, as well those who think there is a variance in the present instance, as those of a contrary opinion, in agreeing that the motion be refused.

It is ordered accordingly.

O’Neall, Evans, Wardlaw, Frost and Whitner, JJ. concurred.

Motion refused.

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The opinion of the Court was delivered by

Withers, J.

There is not, at present, a sufficient concurrence of opinion, either way, among the members of this Court, to warrant a judgment upon the question, whether the suing a writ by a minor, by attorney, and following the same in a declaration, by next friend appointed by the Court, presents such a variance as may be the subject of a successful plea to the declaration.

Not deciding, but assuming, the affirmative, we are of opinion, nevertheless, that the form of the plea, in the present instance, is misconceived, and that it is well met by the demurrer.

In several cases to be found in our books, we are aware it has been said, that an objectionable variance between the capias ad respondendum and the declaration may be properly the subject of a plea in abatement. Y et in the case of Sargent vs. Hayne, (2 Hill, 585,) the precise point came up, and was adjudged contrary to the dicta which it was there said had appeared in several prior cases. The following language was used in that decision: “In this State we have no original writ, properly and technically so called : our writ is merely process to bring the defendant in to answer. It is regarded as a part of the general record, and, in that point of view, it was held in Young vs. Grey, (1 McCord, 211), that the variance between the writ and declaration might be taken advantage of by special demurrer. That decision concluded that point, and it has ever since been regarded as settled law.” I take it tobe clear, (said O’aeall, J.) (hat a plea must [261]*261be of something dehors the record. The variance between the writ and declaration is to be ascertained by inspection : if any existed to be pleaded, the defendant, as in Young vs. Grey, may demur.”

Since this was the point of that case, and was thus distinctly ruled, we think this Court under an obligation to respect it, and have reason to suppose that the profession has regarded the question to he settled. In Emmons vs. Bailey, (1 Strob. 422,) the defence was founded upon a variance between the writ and declaration, and a demurrer was employed as the means of presenting the issue.

This view of the case now before us supersedes the occasion of entering upon the learning which has been employed in the argument, and unites, as well those who think there is a variance in the present instance, as those of a contrary opinion, in agreeing that the motion be refused.

It is ordered accordingly.

O’Neall, Evans, Wardlaw, Frost and Whitner, JJ. concurred.

Motion refused.

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Bluebook (online)

39 S.C.L. 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-robert-scctapp-1852.