Pond v. Benzik

100 A. 476, 29 Del. 451, 6 Boyce 451, 1917 Del. LEXIS 19

• Court: Superior Court of Delaware
• Decided: March 21, 1917
• Docket: No. 28
• Status: Published

Opinion

Boyce, J.,

delivering the opinion of the court:

This is an action of replevin. The sheriff executed the writ , in so far as to replevy the property mentioned therein. William Benzik then interposed, and gave to the sheriff the following bond:

“Be it remembered, that William Benzik and Edgar P. Reese, of the city of Wilmington, New Castle County and State of Delaware, personally appeared before Harry J. Stidham, sheriff of New Castle County aforesaid, and acknowledged to owe to said Harry J. Stidham, sheriff as aforesaid, the sum of eight hundred dollars to be levied on their goods, chattels, lands and tenements respectively, for the use of the said Harry J. Stidham, sheriff as aforesaid, upon the condition that if the above bounden William Benzik, his executors or administrators, be and appear before the Judges of the Superior Court at Wilmington on January 1, A. D. 1917, there to answer the said Dr. Frank H. Pond of a plea of taking and unjustly retaining the said goods and chattels, and shall fully and without delay satisfy any judgment which shall be given against him, the said William Benzik, or his executors or administrators, in said suit, then,” etc.

There is annexed to the bond a warrant of attorney for the confession of judgment thereon in favor of the said Dr. Frank H. Pond.

William Benzik also caused the sheriff to make the following return on the writ:

“Replevied and delivered the within named goods and chattels and afterwards counterbond given by William Benzik erroneously designated in the writ as Alex Benzik and summoned the said William Benzik personally. So ans.,” etc.

Counsel for William Benzik has entered an appearance.

The court is of the opinion that, under the state of the record, both the property and William Benzik, as defendant, are in court; and that the prayer of the plaintiff to amend his prsscipe and the writ by striking out the name of “Alex” and substituting the name of “William” therein should be allowed.

Let the prsscipe and writ be amended accordingly.