
    SPRINGER against THE COMMONWEALTH
    A variance between the writ and declaration must be. taken advantage of by plea in, abatement, if at all ^ and not bn a'writ of error.
    A plaintiff wlio sues’out a writ of summons pursuant to the provisions of the act of-twenty-first March’, one thousand eight hundred and sis, cannot afterwards file a declaration and proceed to juclgmerit at the first term, hy authority of the act of-twentieth March, one thousand seven hundred and tweijty-five.
    Error to Fayette county.
    In the court helow, The Commonwealth was the plaintiff, and sued out a writ of “ summons in debt, not exceeding four hundred dollars” against John and Jacob Springer, executors of Dennis^. Springer, deceased.. A. declarptipn’ w^s filed claiming ninq hqm„ ¿red dollars. The writ was served upon the defendants, who did not appear; and the court on motion of the plaintiff’s counsel, on the second day of the term to which the writ was returnable, rendered a judgment fgr the jffaiqtiff: which they afterwards refused to open.
    The errors assigned were, first, The variance between the writ and count. Second, That the judgment was rendered in pursuance of the provisions of the apt qf qne thousand eight hundred and six, in an action commenced under the act of one thousand seven hundred and twenty-five.
    
      W. Forward for plaintiff in error.
    Cited Wingerl v. Connell, .4 Serg. 8? Rawle, 237.
    
      W. Wilkins for defendant in error.
   The opinion of the court was delivered by

Rogers, J.

—A variance between the writ and the declaration must be taken advantage of by plea in abatement, if 'at all; and this disposes of the first error assigned.

The plaintiff in error further objects, that the judgment was obtained by default, on motion, the second day of the term to .which the writ was returnable. If this be a proceeding under the act of the twenty-first of March, one thousand eight hundred and six, (and it is too plain to admit qf argument that it is,) then it clearly comes within the decision of the court, in Wingert v. Connell, 4 Serg. & Rawle, 237. The judgment was entered previous to the time allqwed by the act for the defendant to, appear, and therefore bad. But it is contended that although the writ was issued under that act, yet that a declaration was filed, and not a statement, and that therefore the judgment by default was regular. Admitting the fact to be so, yetthe argument is more fallacious than solid. For where the' defendant is served with process, which is authorized solely hy the act of one thousand eight hundred' and six, he is warranted in be-* lieving that the directions of the act will be pursued throughout. And if the plaintiffis at liberty, without notice, to take judgment in any other way than is therein prescribed, it would prove a snare to the unwary, and may be used as a device to obtain judgment without a hearing. An attempt, such as this, should he nipt in the bud, for the defendant has a right to rely on the act which saves a de-¶ fault by an appearance on the third day of the next succeeding term to which the process issued is returnable, where the term is for one week, and the second Monday of the term where it com iinues two weeks, . ,

Judgment reversed and a venire de novo awarded.  