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.