Robinson v. Cox

1 Minor 84

Opinion

JUDGE Lipscomb

delivered the opinion of the Court.

In this case it is assigned as Error—1st, That the writ is in the debit only, when it should have been in the debit and detinet. 2d, The note described in the indorsement of the writ is not the note described in the declaration.

The object of the writ is to bring the defendant into Court. We must look to the declaration for the formal exposition of action. If the defendant would take advantage of a variance between the writ and declaration, he must do so by demurrer or plea in abatement before he pleads to the merits. Here the plea was payment, and issue taken and verdict rendered thereon. Advantage of a mere formal de» feet cannot now be taken..

Let the judgment be affirmed.