OPINION OF COURT. 1899. Nihil habent as to Anna J. Shields, Lena Shields, Mary O'Brien, Kate Cassidy and Robert Wannamacher." John Shields, James Shields, Annie J. Shields and Hannah Harkins, who were served under the first writ, failed to file an affidavit of defence at the first term, but filed their affidavit of defence upon the return of the alias. sci. fa. at the second term. Mr. Chandler for plaintiff, asked for judgment, notwithstanding the affidavit of defence, on the ground that the said defendants having been served at the November Term, 1898, and failing to put in their affidavit, they were guilty of laches, and were too late to file the affidavit at the February Term, 1899. The Court held that the party upon whom service was had, should have filed his affidavit at the first term of the court to which the original process was returnable, and not having so filed his affidavit, it was too late to file it at the second term, upon the return of the alias sci. fa., and that the plaintiff was therefore entitled to judgment, notwithstanding the affidavit of defence. NOTE. This decision follows and affirms the decision made at the April Term, 1898, in the case of Benjamin R. Riggin, Executor of George Hall, deceased, vs. Edward G. Kimes, Mortgagor, and Henry F. Hepburn, terre tenant, being Number 23 to October Term, 1897. In this case a sci. fa. was issued to the October Term, 1897, and service had upon Henry F. Hepburn, terre tenant, and nihil as to Edward G. Kimes, mortgagor; abstract and affidavit also filed. An alias sci. fa. was issued to the April Term, 1898, and returned nihil as to all defendants. On the return of the alias sci. fa., Hepburn filed an affidavit of defence. The Court there held that he should have filed his affidavit of defence at the return of the original writ, and that it was too late to file it upon the return of the alias sci. fa., and therefore rendered judgment in favor of the plaintiff, notwithstanding the affidavit of defence. SYLLABUS. EDWARD T. BELLAH, Trustee, Assignee of William F. Seeds, v8. WILLIAM S. HILLES, Administrator C. T. A., of Levi Taylor Dickson. Foreign Attachment—Amending Original Process. Foreign attachment is only to compel appearance, and where the defendant appears by putting in special bail, under the express terms of the statute, the case proceeds as in cases commenced by summons, and the plaintiff will be allowed to amend his original process. (March 30, 1899.) LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting. Superior Court, New Castle County, February Term, 1899. Counsel for plaintiff moved to amend the original process, so that the title of the plaintiff would be "William F. Seeds for use of Edward T. Bellah, Trustee." At the time of said motion the defendant had appeared by putting in special bail; the declaration was filed. It was contended by Mr. Hilles that it being a proceeding by foreign attachment which was purely a statutory remedy, it had been uniformly held that the statutory proceedings must be strictly adhered to, and that there was no statutory authority for amendment in such case. The Court held that as foreign attachment was only to compel appearance and that as the defendant had appeared by putting in special bail, under the express terms of the statute, the case proceeded as in cases commenced by summons, and that the plaintiff OPINION OF COURT. was therefore entitled to amend. Waples and wife vs. McIlvaine's Admr., 5 Harr., 381; McColley vs. Collins, 5 Harr., 391; Benjamin's Executors vs. Boyce, 2 Harr., 315; Collins vs. Townsend, 2 Harr., 317. Amendment allowed. SPRING SESSIONS, 1899. JOHN H. TRUITT, Sheriff, for the use of GEORGE HARMON, vs. ELIJAH W. COLLINS. I. In an action upon a replevin bond for failure to prosecute a replevin suit with effect, where a nonsuit had been entered in the replevin suit and no further proceedings had therein; held, upon the authority of McIlvaine vs. Holland, 5 Harr., 226, that testimony as to the value and ownership of the property replevied was admissible, and that the plaintiff was entitled to a verdict for the amount of the costs recovered in the replevin suit, and for such further damages as he may have actually sustained by reason of the failure of the plaintiff in the replevin to prosecute his suit with effect; the whole amount to be recovered not to exceed the penalty of said bond. 2. Amendment allowed as to the name of the party plaintiff. (April 5, 1899.) JUDGES SPRUANCE, GRUBB and BOYCE sitting. C. W. Cullen and John M. Richardson for plaintiff. ACTION OF DEBT ON REPLEVIN BOND (No. 20, October Term, 1896). A writ of replevin to the October Term, 1894, was issued at the suit of Benjamin M. Jones against George Harmon for a lot of cord-wood, under which said property was delivered to the said Jones, he, with the defendant in this action, Elijah W. Collins, executing to the sheriff a replevin bond in the penal sum of four hundred dollars with condition, in substance, that if the said Jones should appear before the Judges of the Superior Court for Sussex County STATEMENT OF CASE-EVIDENCE. at the October Term then next, and then and there well and truly prosecute the said writ of replevin with effect; and should return said property if the same should be adjudged; and should then and there defend the said sheriff for replevying and delivering said property, and should stand to, abide by, perform and fulfill the judgment of the Court in the premises, then the said obligation should be void. The said replevin suit came on for trial at the October Term, 1895, and after the plaintiff had closed his testimony, on motion of the attorney for the defendant, the Court ordered a nonsuit to be granted. In the present action upon the said replevin bond, the only breach alleged in the plaintiff's declaration is, that the plaintiff in the said replevin suit failed to prosecute his said suit with effect. 66 This action having been brought in the name of George Harmon, assignee of John H. Truitt, late Sheriff of Sussex County, vs. Elijah W. Collins;" on motion of plaintiff's attorneys, after objection and argument, the name of the party plaintiff was amended so as to read: "John H. Truitt, Sheriff, for the use of George Harmon" on the authority of Waples vs. McIlvaine, 5 Harr., 381. The plaintiff offered to prove the value of the cord-word in 1894, when the writ of replevin was issued, and the said wood taken thereunder. The defendant objected on the grounds that the measure of damages for the breach of the replevin bond could only be proved by the judgment obtained in the replevin suit, and that inasmuch as the defendant in the replevin suit failed to ask for a judgment pro retorno habendo at the time of nonsuit, and failed to prove any damages at that time, he is estopped from proving any damages in this suit other than for the costs. Smallwood vs. Norton, et al., 20 Me., 83; Ladd vs. Prentiss, 14 Conn., 109; Clark vs. Norton et al., 6 Minn., 412; Chambers vs. Waters, 7 Cal., 390; McIlvaine's Admr. vs. Holland and |