
    Pell and Wipe against Grigg.
    If the decíaa cause of ac-from thecae etiam, the spemove^for”™ exoneretur, which will be ordered with costs.
    The ac etiam in the alias capias ad respondendum, on which the defendant was arrested, was thus: “ for speakutteringand publishing certain slanderous, scandalous, and actionable words against the said Joseph and. Sarah, to ■ their damage, &c.” The defendant having been holden to bail below upon a Judge’s order, put in bail above. The , ' , . . ..... , . , declaration was for maliciously suing out an attachment under the absconding debtor act, against Mrs. Pell, upon false representations, and affidavits wrongfully procured; and upon.the false affidavit of the defendant, &c.
    
      H. A. Fay,
    
    moved, that an exoneretur be entered oii the original bail piece, for the variance between the ac etiam and,the declaration; and cited Tidd’s Pr. 242, 2 H. Bl. 278. 2.B. .& P. 358.
    
      H. A. Western, contra,
    believed that the bail were-discharged-by. the variance ; but insisted that the motion was unnecessary, and should, therefore, be denied. The variance exonerated the bail by its own- operation ;.and would be a, defence in an action on the recognizance. At any rate,, costs,should.not be allowed against the plaintiff.
    
      Fay, in reply, said the-bail were entitled to a discharge obrecord.
    Without.ttiis formality, they would b'e liable to a suit. The delay to apply for this would; by and by, be insisted;on .as. a waiver of the objection.
   The Court, without assigning their reasons, granted the motion with costs.

Rule accordingly.  