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Pleas in Abatement of the

writ, action, variance, gould, ch and declaration

PLEAS IN ABATEMENT OF THE WRIT.-In general, any irregularity, defect, or infor mality in the terms, form, or structure of the writ, or mode of issuing it, is a ground of abatement; Gould, Pl. ch. 5, s. 132. Among them may be enumerated want of date, or impossible date; want of venue, or, in local actions, a wrong venue; a defective return; Gould, Pl. ch. 5, s. 133. Oyer of the writ being prohibited, these errors cannot be objected to unless they appear in the declaration, which is presumed to cor respond with the writ ; Campbell v. Chaffee, 6 Fla. 724; 3 B. & P. 399; 14 M. & W. 161. The objection then is to the writ through the declaration; 1 B. & P. 648; there being no plea to the declaration alone, but in bar ; 2 Saund. 209. A variance between writ and declaration may properly be pleaded in abateinent; Weld v. Hubbard, 11 Ill. 573 ; Pierce v. Lacy, 23 Miss. 193.

Such pleas are either to the form of the writ, or to the action thereof.

Those of the first description were former ly either for matter apparent on the face of the writ, or for matter dehors; Com. Dig. Alit. H, 17.

Pleas in abatement to the form of the writ were formerly allowed for very trifling errors apparent on the face of the writ ; 2 B. & P. 395, but since over has been pro hibited, have fallen into disuse; Tidd, Pr. 636.

Pleas in abatement of the form of the writ are now principally for matters dehors; Com. Dig. Abt. H, 17; existing at the time of suing out the writ, or arising afterwards; such as misnomer of the plaintiff's or de fendant's name ; Tidd, Pr. 637.

Pleas in Abatement to the Action of the Writ are that the action is misconceived, as if assumpsit is brought instead of account, or trespass when case is the proper action; 1 Show. 71; Tidd, Pr. 579; or that the right of action had not accrued at the commence ment of the suit; Cro. Eliz. 325; Com. Dig. Action, E, 1. But these pleas are unusual, since advantage may be taken for the same reasons on demurrer or under the general issue; Gould, P1. ch. 5, s. 137; 1 C. & M. 492,

768.

Variance. Where the count varies from the writ, or the writ varies from the record or instrument on which the action is brought, it is pleadable in abatement ; Cro. Eliz. 722; 1 H. Bla. 249; McNeill v. Arnold, 17 Ark. 154; Carpenter v. Hoyt, 17 Ill. 529; Smith v. Butler, 25 N. H. 521; and not otherwise; Lovell v. Doble, Quincy (Mass.) 88. If the variance is only in matter of mere form, as in time or place, when that circumstance is immaterial, advantage can be taken only by plea in abatement; Riley v. Murray, 8 Ind. 354; Cruikshank v. Brown, 5 Gilman (Ill.) 75; Latch 173; Gould, P1. ch. 5, s. 97. But if the variance is in matter of substance, as if the writ sounds in contract and the dec laration in tort, advantage may also be taken by motion in arrest of judgment ; Pitman v. Perkins, 28 N. H. 90 ; Cro. Eliz. 722. Pleas under this head have been virtually abol ished by the rule refusing oyer of the writ ; and the operation of this rule extends to all pleas in abatement that cannot be proved without examination of the writ; Gould, P1. ch. 5, s. 101. It seems that .oyer of the writ is allowed in some of the states which retain the old system of pleading, as well as in those which have adopted new systems. In such states these rules as to variance are of force; Pitman v. Perkins, 28 N. H. 90; Carpenter v. Hoyt, 17 Ill. 529; Chapman v. Spence, 22 Ala. 588 ; Pierce v. Lacy, 23 Miss. 193; Riley v. Murray, 8 Ind. 354; Lary v. Evans, 35 N. H. 172; McNeill v. Arnold, 17 Ark. 154 ; Giles v. Perryman, 1 Harr. & G. (Md.) 164; White v. Walker, 1 T. B. Monr. (Ky.) 35; Chirac v. Reinicker, 11 Wheat. (U. S.) 280, 6 L. Ed. 474; Garland v. Chattle, 12 Johns. (N. Y.) 430; President, etc., of Bank of New Brunswick v. Arrowsmith, 9 N. J. L. 284. See VARIANCE.