
    Streeter vs. Frank.
    Justice’s Cotjet — Process.—Whenever the statute prescribes a form for any writ, that form must be strictly followed, especially by justices of the peace.'
    (4 Chand., 93.)
    ERROR to the County Court for Jefferson County.
    
      Frank brought an action of replevin against Streeter for the wrongful taking and detention of certain personal property, and Streeter who was a constable, justified such taking and detention under an execution issued on a judgment rendered in justice’s court against Frank and in favor of one Cole, and in his hands as such officer.
    
      After the plaintiff had rested his case the defendant offered in evidence the execution upon which he relied, and it appeared that the words found in the statutory form “ excepting such as the law exempts,” were omitted from the execution. The plaintiff’s evidence showed that the property seized was claimed by him as exempt, and tended to show that it was exempt."
    The plaintiff objected to the execution on account of the omission of the words “ excepting such as the law exempts,” and the court sustained the objection. The plaintiff had a verdict and judgment, and the defendant sued out a writ of error.
    
      T. & J. Prentiss, for plaintiff in error,
    argued that the statute gives no form for executions issued from courts of record, and is merely directory in giving the form of a justice’s execution ; it does not say that it shall be in that form, but that it may be. R. ;S., ch. 88, § 190. A substantial compliance with what the law directs in an execution is all that is necessary. 2 Ala., 68; U. S. Digest, 741, § 69; Rev. Stat., ch. 100, § 19.
    
      Mall & Newhall, for defendant in error,
    argued that the execution was not good; that it must follow the statute except as to verbal and literal variances, and if it materially vary from the forms, prescribed by statute, it will not protect the officer. 1 U. S. Dig., 10, § 285 ; 2 id., 815, § 2; 10 Mass., 856; 8 id., 198 ; 11 id., 276 ; Oowen & Hill’s Notes, 1007-8 ; Ohitty Con., 693 ; R. S., ch. 88, § 187-9.
   Larrabee, J.

"We affirm this judgment on the sole ground that the execution under which the defendant Streeter justified, was not in conformity with the statute. Whenever the statute prescribes a form for any writ, that form must be strictly followed, and certainly by justices of the peace. We do not decide any other point in the cause.

Judgment affirmed.  