— I concur in the conclusion of the opinion of the Court; but do not think the declaration was so entirely variant from the writ, as to have authorised a non-suit. If the parties who appear to have acknowledged service of the writ, can be considered to have been in Court at the return term, (on which it is not necessary to express an opinion,) the motion to quash at the trial term was too late. But as a plea in abatement for a variance between.the writ and declaration, would have been proper, and should have been sustained, I do not feel authorised to reverse the judgment on the motion to quash, and send the case back to have the same judgment rendered .on plea.