Durfee v. Heemstreet

1 Wend. 305

Opinion

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 the case alluded to, the court will not depart from the decision there made, The motion is granted with costs.