Poyen v. McNeill

Shaw, C. J.

The court are of opinion that these exceptions cannot be sustained. Strictly speaking, the revised statutes do not prescribe the form of a writ of replevin for goods over $20 value. Rev. Sts. c. 113, § 28. They direct that the writ “ shall be in the same form, substantially, that has been heretofore established and used,” that is, established by law for such replevin writs, before the revised statutes ; not established by a prior provision in the same chapter, § 17, directing the mode of proceeding on a justice’s writ, when cattle are replevied. But undoubtedly, under the above word “ substantially,” it is proper to alter the form of the writ so as to conform to the change of the law made by the revised statutes, requiring two sureties. But forms of writs given by statute are directory only, and it is sufficient that they are followed in substance. Whether the writ would have been good if served without taking two sureties, we need not consider, because before service such bond was given, conformably to Rev. Sts. c. 113, $ 29.

*294And if the process was irregular, we think it was amendable, and the amendment well allowed, under the provision allowing amendments in form or substance “ of any process.” Rev. Sts. c. 100, § 22.

Exceptions overruled