
    Peter S. Schenck against The Executors of John Schenck, Deceased.
    If the summons issuing out of this court, calls upon the defendants to answer the plaintiff in a plea of trespass, and also to a bill to be exhibited against the defendants to the damage of the plaintiff §8000, and the declaration is in’ assumpsit, the defendant may crave oyer of the writ and plead in abatement, the variance between the summons and the declaration, and such plea will be good.
    
      W. Halsted, for the plaintiff.
    
      Vroom, for the defendants.
   The Chief Justice

delivered the opinion of the court.

This case comes before us on a demurrer to a plea in abatement, in which the defendant, after oyer of the writ of summons, whereby the action was commenced, alleges a variance between the writ and the declaration in this, “ that in and by the said writ the said defendants are summoned to answer unto the plaintiff in a plea of trespass, and in the said declaration founded on the said writ, the said plaintiff complains of the defendants of a plea of trespass on the case upon promises.”

The summons requires the defendants to answer unto Peter S. Schenck of a plea of trespass; and.also to a bill of the said Peter then and there to be exhibited against the said David Manners, Garret Schenck and Peter Voorhees, executors as aforesaid, to his damage, eight thousand dollars.” The declaration is in assumpsit, containing the common counts for work and labor done, money lent and advanced, money paid, laid out and expended, goods, wares and merchandise sold and delivered, and a count on a subscription to pay a sum of money to assist the plaintiff in erecting a grist mill.

Between the action of the declaration and the action of the writ, there is clearly the variance averred by the defendants in their plea. The latter is trespass. They are required to answer “in a plea of trespass,” and although the words, “ and also to a, bill,” &c., are added, yet no other form of action is expressed, and hence the writ must necessarily be either a writ in trespass or without form of action. It is probable the person who drew the writ, intended to pursue the form of the court of King’s Bench, and the ancient form of this court, inserting the clause of .trespass and the aa etiam, in the latter of which he may have intended to express some other form of action; but he has not done so, and the writ stands therefore an informal writ in trespass. In the case of The Bank of New Brunswick v. Arrowsmith, 4 Halst. 284, we held that the declaration must conform to the writ. Such conformity is required, as well by the rules of the common law, as by our statute, which forbids the practice of declaring, by the by; a practice introduced into the court of King’s Bench, in consequence of their peculiar mode of acquiring, by fiction, jurisdiction of certain civil actions. In the same case, we also held that a defendant may avail himself of a variance between the writ and declaration, by oyer and plea in abatement. Chirac v. Reinicker, 11 Wheat. 302, variance between the' writ and declaration may be pleaded in abatement.

Let judgment on the plea in abatement be entered for the defendants.  