delivered the opinion of the Court:
«-The only errors assigned on this record are, the overruling of the motion for a continuance of the motion made for a new trial, and overruling the motion in arrest of judgment.
The motion for such continuance was based on the affidavit of defendant’s counsel of surprise by the testimony introduced by the plaintiff: that, since the place and time of the alleged killing of the plaintiff’s stock had been located and fixed by said testimony, the defendants had inquired into the facts, and, as the affiant wa-s informed, had learned that they could entirely disprove the facts testified to by the plaintiff’s witnesses; and as the place of trial was 100 miles distant from the place of the alleged occurrence, a continuance of the motion was necessary, and was asked for in order to obtain the affidavits of the witnesses.
This was a motion addressed to the discretion of the court, and we see no such abuse of discretion as calls for our interference with the mode in which it was exercised.
The ground of the motion in arrest of judgment was, that the action was in trespass, and the declaration purports to be in trespass, but the count is in trespass on the case.
*391The discrepancy which is insisted upon is not apparent. The term “ trespass,” as here used, may be taken, without doing violence to language, in its most extensive signification, as meaning a wrong done generally, and not as denoting the particular species of action of trespass vi et armis, rather than that of trespass on the case.
It is admitted that the count in the declaration is a count in trespass on the case. This would make the declaration one in case, although the declaration commences in another form of action, under the authority of Ayres v. Richards, 12 Ill. 146, where it was held that, when the introductory part of a declaration is in the appropriate form for debt, but all the counts are strictly and technically in assumpsit, it will be considered a declaration in assumpsit. At the most, then, it is only a case of variance between the writ and declaration, which can be taken advantage of only by plea in abatement, or by motion in apt time, which was not attempted to be done here. Cruikshank v. Brown, 5 Gilm. 75.
The judgment of the court below is affirmed.
Judgment affirmed.