case of a similar change of parties. The addition of the husband, at the utmost, only imposed on us the duty of proving the marriage.
4. A variance between the writ and declaration could only have been taken advantage of upon oyer of the writ, and plea in abatement.[1] Oyer will not now be granted, and such a plea cannot, therefore, obtain. Nor will the proceedings be set aside for irregularity, on account of such a variance.[2] Even supposing, that for this defect the party might have refused to plead, or otherwise have made the objection available, it is too late now since he has pleaded the general issue.[3] A variance of this kind could once have been taken advantage of in England upon writ of error; but that cannot now, since the statute of jeofails, be done there; nor in Maryland, since her act of 1809, ch. 153. Where the writ is, according to the ancient practice, fully recited in the declaration, advantage might be had of the variance on demurrer. But that is not the case here.[4] The recital of the writ in the declaration is unnecessary; and, when made, as in this instance, is to be rejected as surplusage.[5]
- ↑ Stephens on Plead. 69. Chitt. Plead. 439. 2 Wils. Rep. 85, 395. 2 Salk. Rep. 658.
- ↑ 1 Bos. and Pul. 645. 6 T. R. 364. Com. Dig. Abatement, G. 8. Bac. Abr. Abatement, H. 1.
- ↑ 1 Bos. and Pul. 383. (a decision founded on the statute, allowing a plaintiff, in certain cases, to enter an appearance for a defendant, and proceed to judgment.)
- ↑ 1 Saund. 318. in nota.
- ↑ 1 Saund. 318. Keb. 544. 2 Lord Raym. 908. 1 Strance’s Rep. 225. Rep. temp. Hardir. 184. 189. 1 II. Bl. 250.
