Majority
p. 148Gerrit Smith vs. Henry Frizell, et. al.
Headnote
A writ of Replevin will be amended on terms, by changing it from cepit and detinet to detinet alone, after the execution and appearance by defendant, where it appeared the attorney issued it, misapprehending the state of facts in the case.Motion by plaintiff for leave to amend the writ of replevin, which was issued and executed in this cause, by striking out the words imputing an unlawful taking, to wit, “ hath taken and,”—changing it from cepit and detinet to detinet alone.—Plaintiff’s attorney issued the writ of replevin for- cepit and detinet, upon information which he supposed warranted it, but subsequently ascertained that it should have been issued for detinet alone, in order to meet the facts of the case. Defendant’s counsel sup
p. 149
posed that a writ issued intentionally cepit and detinet could not be amended under the rule; that the decisions went to show that such amendments would be allowed only where it was shown to be a clerical mistake in drawing the writ. It was shown that the defendants had appeared, but the plaintiff had not declared.
A. C. Hand, Plffs Counsel. A. C. Hand, Plffs Atty.
M. T. Reynolds, Hefts Counsel. C. F. Tabor, Hefts Atty.
Thought the amendment should be allowed under the general rule; and granted the motion on payment of $7 costs of opposing the motion, and giving a new replevin bond nunc pro tunc, and the sureties therein justifying, provided the form of the existing bond be such that it will not be adapted to the amended writ.