Opinion
September Term, 1791.
A writ improperly issued by the clerk in case may be altered to debt, after it is returned executed.
Jones, for the plaintiff, moved for leave to alter the capias, which had been returned "executed." He observed that it had been issued by the clerk: that the instrument on which the suit was brought was a deed, and the capias had been filled up in case: while it ought to have been in covenant.
The defendant was not in Court, and none of the gentlemen of the bar present, was employed for him.
NOTE. — See, contra, Anonymous, 2 N.C. 401. But see note to Cowper v. Edwards, 2 N.C. 19, and the cases there referred to; and also the cases of Johnston v. McGinn, 15 N.C. 277; Grist v. Hodges, 14 N.C. 198; Alston v. Hamlin, 19 N.C. 115; Green v. Deberry, 24 N.C. 344. All amendments, made either by consent or by leave of the Court, ought to appear on the record. Shearin v. Neville, 18 N.C. 3.
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