It is necessary that the declaration in every case should comport with the writ; for its design is to specify fully and particularly that cause of action which the writ states as the foundation of the Plaintiff’s claim. So essential a variance as the record pre* *213sents in this case, cannot be permitted, without intro-during’uncertainty and confusion into legal proceedings, and without suffering any diversity, however palpable, to exist between the w'rit and the count. The Defendant is brought into Court to answer to one person, and he cannot when there, be liable to answer two upon the same writ. The plea must therefore be sustained.
Governor v. Horton, 5 N.C. 212, 1 Mur. 212 (1808)
July 1808
·
Supreme Court of North Carolina
5 N.C. 212, 1 Mur. 212
The Governor v. Horton.
I I From Rowan.
Debt to recover £100, the penalty imposed by the act of .1794, ch. 2, for importing a negro slave into the State. The writ called upon the Defendant to answer “James Turner, Governor, &c. of a plea that he render to him £100, &e.” The declaration stated, “ Benjamin Forsythe, who sues in this behalf, as well for his Excellency James Turner, now Governor of the State, &c. as for himself complains of William Horton, &c. that he render to James Turner, now Governor, &c. and the said Benjamin, who sues as aforesaid, £100, &c. Variance between writ and declaration, pleaded in abatement.. Ple& sustained.
This was an action of debt to recover the penalty of one hundred pounds, for bringing a negro slave into this* State, contrary to the act of 1794, ch. 2. The act directs the penalty to be recovered in the name of the Governor for the time being; and the writ called upon the Defendant to answer “ James Turner, Governor, &c. of a plea that he render to him one hundred pounds, &c.’* The declaration did not pursue the writ, but stated, “ Benjamin Forsythe,' who sues in this behalf, as well for his Excellency James Turner, now Governor of the State of North-Carolina, as for himself, complains of William Horton, being in custody, &c. that he render to James Turner, now Governor, and the said Benjamin, who sues as aforesaid, one hundred» pounds, ike.” The Defendant pleaded this variance between the,writ and declaration in abatement; and the case was referred to this Court, upon the question, whether the plea should be sustained ?