4 Johns. 485 | N.Y. Sup. Ct. | 1809
When the defendant is held in bail on a capias, (which presupposes an original bill,) by an ac etiam clause, the plaintiff is bound to pursue it, and declare accordingly. If the plaintiff, in such case, in his declaration, varies the nature of the action, it is an irregularity, of which the defendant may take advantage, on motion. An exoneretur has often, in such cases, been ordered to be entered on the bail-piece. Relief, on motion, seems only to be denied, when such variance exists between the declaration and the original writ, where the suit is commenced by original. (Cowp. 455. 5 Term Rep. 402. 7 Term Rep. 80. 6 Term Rep. 364. 2 Wils.
Motion granted.
