Rogers v. Rogers
New York Supreme Court
THE defendant in this cause was arrested on a capias ad respondendum, containing an ac etiam clause, upon promises, for 500 dollars, returnable at the last term, and special bail was put in and perfected, in conformity to the writ. The plaintiff, afterwards, declared against the defendant in an action of account, and a rule to plead was entered thereon. A motion was now made, in behalf of the defendant, to set aside the proceedings for irregularity.
1Per curiam
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…
2Cited by6 opinions
- Hansford v. TateWest Virginia Supreme Court · 1907
- McLeod v. HarperMississippi Supreme Court · 1870
- Hemson v. DeckerNew York Supreme Court · 1865
- Longyear v. Minnesota Lumber Co.Michigan Supreme Court · 1896
- Sheppard v. SheppardSupreme Court of New Jersey · 1828
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