Durfee v. Heemstreet
New York Supreme Court
Motion to set aside proceedings for irregularity. The defendant was arrested on a capias containing an ac etiam clause in trespass, for entering the close of plaintiff and debauching his daughter. The defendant filed special bail, and the plaintiff declared against him in case, and not receiving a plea, entered the defendant’s default, and gave notice of executing a writ of inquiry.
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Motion to set aside proceedings for irregularity. The defendant was arrested on a capias containing an ac etiam clause in trespass, for entering the close of plaintiff and debauching his daughter. The defendant filed special bail, and the plaintiff declared against him in case, and not receiving a plea, entered the defendant’s default, and gave notice of executing a writ of inquiry. A motion was made to set aside the rule to plead, and all subsequent proceedings for irregularity.
1Opinion of the Court
*306 By the Court,
Sutherland, J.
For a variance between the ac etiam contained in the capias on which the defendant was arrested, and the cause of action set forth in the declaration, this court, in 4 Johns. R. 484, set aside the proceedings as irregular. It is said this is not conformable to the English cases; that the only effect of such variance, according to those cases, is to discharge the bail, whether the proceeding be by bill or original. Without deciding this question, it is enough that this court has a right to regulate its own practice ; and this precise question having been decided in…
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