How v. McKinney
U.S. Circuit Court for the District of Indiana
In this case, a motion was made by Mr. Pettit, who appeared for the defendants, to quash the writ on the following grounds: (1) Because the declaration varies from .the writ. (2) Because the writ is in case, and the endorsement on it is special, on a promissory note and bail required. (3) The writ is too general, being simply trespass on the case.
1Opinion of the Court
BY THE COURT.
The second and third objections to the writ are not sustainable. The writ is in the usual form and is good. And, as to the objection of variance between the writ and the declaration, that should be taken advantage of by plea in abatement or a special demurrer. A practice, it is said, has been adopted in one of the judicial circuits of this state, to take advantage of any variance between the writ and declaration, by a motion in this form. And it is insisted that this is in conformity with the English practice. It is true that a plea in abatement or demurrer for this variance is…
2Cited by2 opinions
- Gavin v. ShumanIndiana Supreme Court · 1864
- Waldo v. BeckwithNew Mexico Supreme Court · 1854