
    Rogers against Rogers.
    ALBANY,
    August, 1809.
    Where an ac e* tlam clause, in. assumpsit, was inserted in a capias ad respondendmn9 and the plaintiff after-wards declared in account, the proceedings were ordered to be set aside for irregularity.
    Where- the de~fendant is held to bail by an ac etiam clause, on. a capiasy the plaintiff is bound to pursue the nature of the action so stated ira the writ»
    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.
   Per 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 Rep. 402. 7 Term Rep. 80. 6 Term Rep. 364. 2 Wils. 394. 1 Tidd’s Prac. 404.) The defendant here, asks generally to have the proceedings set aside for irregularity, and as the rule to plead upon the declaration filed was irregular, it must be set aside with costs.

Motion granted.  