
    Charles D. Sprague, Plaintiff in error, vs. H. M. Devens, Defendant in error.
    
    A constable having £uly served a writ of replevin, omitted in his return to state the time, of service, but by leave of the Court, the day after judgment was rendered, amended his return by inserting the day of service. Held, on certiorari, that it was legal and cured the defective return.
    2. The plaintiff in replevin, before a justice, filed bond on applying for. writ, in the penal sum of $50 only, instead of $100, under § 3695, O. L., and proceeded to judgment, defendant not appearing. Held erroneous and judgment reversed.
    
      Branch, Circuit,
    
    
      April 1870.
    
      Certirari to Justice’s Court.
    The suit below was in replevin commenced by the defendant in error, by writ issued Dec. 2d, 1869, and made returnable Dec. 14th.
    The bond given by the plaintiff below, under § 3695, C. L., was the penal sum of $50 Gnly, and not $100. The constable served the writ Dec. 2d, 1869, by replevying the property therein described, and by leaving a certified copy of the writ at the residence of the defendant, with a person of proper age, the defendant not being found, but in making his return of service omitted to specify therein the day when he served the writ. On the return day, Dec. 14th, the plaintiff appeared and filed his declaration and took judgment, the defendant not appearing. On the next day, Dec. 15th, the justice allowed the constable to amend his return so as to show the day when the writ was served. The defendant below subsequently sued on this writ of certiorari to remove the proceedings to the Circuit Court. The allegations of error chiefly relied upon were the insufficiency of the bond and the defeet, in the return of the officer to the writ in not showing affirmatively a service six days before the return day thereof, at time judgment was rendered.
    
      Levi Sprague, Attorney for Plaintiff in error.
    
      J. H. McGowan, Attorney for Defendant in error.
   By the Court,

Upson, J.

By § 3692, C. L., the constable serving any process is required to “ return thereon, in writing, signed by him, the time and manner of executing the same,” and by § 3696, C. L., writs of replevin are required in Justices’ Court to be “ served not less than six days before the return thereof.’’ In this case the constable in the first instance omitted to state in his return the time of service, and under a similar statute in New York, where such omission occurred and the Justice rendered judgment in favor of the plaintiff, it was held fatal on certiorari, and the judgment was reversed; the return'of the certiorari still showing the same return of the officer on the writ of replevin. 2 Hill, 517; 17 Wend., 517.

But it appears by the return now made to the writ of certiorari in this case, that on the next day after the rendition of the judgment, the constable, by leave of the Court, amended his return so that it gavé the actual time of service, and that it was served, as now appears, within the time required by law, This we think the constable might, with leave oí the Court, lawfully do under the statute, and that no advantage can now be taken of it. See §§ 4417, 4418, 4419 and 4422, C. L.

Also — 14 Mich., 348,, and 1 Mich., 344 — service in either mode — i. e., personally or by copy when property replevied— authorized the Justice to proceed with the case. Secs. 3699, 5016 and 5026, G L.

But the bond in this case was defective, being in a penalty less than $100, as required by statute to authorize the Justice to issue the writ. Sec. 3695, O. L.

This is'a material requisite to the obtaining jurisdiction, and in this proceeding is not amendable here — this being a hearing on certiorari and in another Court. 5 Mich., 33 and 511; 6 Mich., 69; 19 Maine, 219.

That it is a material defect, see § 3695, C. L.; 2 Mich., 337; 3 Denio, 54; 1 Denio, 184; 20 Wend., 673; 19 Wend., 632; 18 Wend,, 521 and note.

The judgment below must therefore be reversed, with costs, and restitution of the property replevied awarded. 1 Dong., Mich., Rep., 302.  