A defendant, by pleading in bar of an action, after a demurrer has been sustained to a plea in abatement, does not thereby waive his rights under the plea in abatement, but may assign for error the decision of the Court sustaining the demurrer. Delahay vs. Clement, 3 Scammon, 201. Variances between the writ and declaration are matters properly pleadable in abatement. 1 Chitty’s Pleadings, 484 5 Prince vs. Lamb, Breese, 298; Duval vs. Craig, 2 Wheaton, 45; Bank vs. Arrowsmith, 4 Halstead, 284.
In our opinion, the Court erred in sustaining the demurrer to the plea in abatement. The summons requires the defendant to answer “ in a plea of debt, to the damage of him, the said Ashley Hubbard, administrator of the estate of Lyman Lamb, deceased, as he says, of two hundred and forty-one dollars.” The declaration complains of the defendant “ of a plea, that he render to the said Ashley Hubhard the sum of two hundred and forty-one dollars, which he unjustly detains from him;55 and, after counting on a promissory note, made payable to the plaintiff’s intestate, concludes, “to the damage of the said plaintiff, as administrator as aforesaid, of two hundred and forty-one dollars.55 Although the action is in debt, the plaintiff, by the writ, only demands damages. By the declaration, he claims a specific sum for his debt, and a like sum in damages, for the detention thereof. Here is a manifest variance between the process and the declaration. The latter is much broader than the former. It would allow the plaintiff to recover in the aggregate of debt and damages, twice the amount demanded in the writ. The declaration ought to pursue the writ, as to the character of the action, and the extent of the demand. It should not he narrower or broader than the writ. So long as different forms of actions are recognized by the law, the rules and distinctions applicable to them should be respected and observed. If counsel will not do this, they must suffer the consequences resulting from their negligence.
It may, perhaps, be proper to remark, that the summons is defective. Instead of demanding a particular sum as the debt, which is the foundation of this form of action, it only claims damages, which are a mere incident of the debt.
The judgment of the Circuit Court must he reversed, with costs.
Judgment reversed.