Smith v. Bradley

Headnote

A declaration should conform strictly to the ac etiam clause of the capias.

Motion to set aside declaration and subsequent proceedings for irregu larity.—This suit was commenced by capias; the ac etiam clause was trespass. The plaintiff in his declaration declared in trespass on the case. The action, was an action on the case, for the seduction of the plaintiff’s daughter. Plaintiff’s attorney supposed that by omitting to state in the ac etiam of the writ, that the action was intended to be trespass, and by not alleging the acts to have been done “ vi et armis ” or “contra pacem,” that both the form and substance of the writ would be in an action on the case, and not in trespass; and that the declaration might be drawn accordingly, he intended to include in the declaration the identical cause of action set forth in the writ and no other.

After the motion papers were served, plaintiff’s attorney offered to pay defendant’s attorney costs of preparing for the motion, if he would

permit him to amend the ac etiam clause of the capias to conform to the declaration. Defendant’s attorney declined to do it, and insisted plaintiff’s attorney should discontinue the suit.