#### WOODS *v.*GREEN.

Amendment — replevin—a singular case of horses alike.

Where the clerk has by mistake omitted to enter the name of one of the jurors on the journal, so that but eleven names appear, he will be permitted to amend by inserting the omitted name, even after a motion in court.

*504Replevin for a sorrel horse. Plea non detinet, with notice that the property in the horse is in the plaintiff.

Fifty witnesses were examined by the parties — thirty-seven of these for the plaintiff, expressing the opinion that the horse in dispute was the property of the plaintiff — thirteen of them for the defendant, expressing the opinion the horse was that of the defendant. Crediting the witnesses, there were two horses nearly alike — - varying in trifling particulars, in spots, color, each with a small *white spot*on the rump near the tail, about the size a 124 cent bit. Woods’ horse had been ruptured when a colt, and bandaged up, which had left scars, and had run against a snag, and left a wound in his breast.

The defendant’s horse had been wounded by some sharp instrument in the breast, in the flank, under the belly near the sheath, and on the hip. He had been cut on the heel by a plough. The horse was exhibited to the witnesses and to the jury. Scars were found on the breast, on the hip, in the flank, and under the belly near the sheath. It did not appear certain whether there was a scar on the heel. One witness swore there was *none*on the horse. Woods bought of one Ritchford, and took his horse home. When the defendant (a colored woman) came to him to claim the horse, she said her horse had a habit of leering his ears, and would obey her call. They went to the horse — his leering habit was noticed. He was then turned into a field — she whistled for him, and he immediately came to her from a distance. This was done several times. The horse was then placed in the stable yard. She spoke to him, called him Tom, ordered him into the stable, and he walked in — he had been before fed there. The horse was then bridled and brought up to the fence, as if to mount him. He held off from the fence— she reached up as if to get a switch, and spoke sharp to him to come up, and he instantly obeyed.

*G. Collings*and Liggett, for plaintiff,

to the jury.

*M. Marshall*and *J. Woods,*for the defendant.

Wright, J.

to the jury. Woods has taken from the defendant the horse in dispute, by a writ of replevin, and now has it. The defendant denies the detention, and claims property in herself. There seems no dispute as to the detention — the only question is, as to the property. If you find the property in the plaintiff, your verdict will be that the defendant is guilty, and you will assess adequate damages for the detention of the horse. If the property is in the defendant, your verdict will be for her, and then you will find if she had a right to possession on the 6th Sept. 1832, the time the *505suit was commenced, and give her damages to indemnify her for the value of the horse as thereby sustained.

*Liggett*

now moved in arrest of judgment, for that it appeared by the -minutes that the jury consisted of but eleven persons.

Verdict-for defendant, and $¡58 damages by her for the injury.

The Court inquired of the clerk how the fact was, and was informed that twelve persons were sworn upon the jury, and continued upon it until the verdict; but that In transcribing the list into the book, he had accidentally omitted to copy one name.

The Court then said, we know, as do counsel, that the jury consisted of twelve — they were frequently called over, and counted in pr'esenee of us all. *Thefact,*therefore opposes the motion. It would be strange if we were without power to correct such a clerical mistake as is contended. We have, however, no doubt of the power or of the propriety of its exercise in this case. The clerk may amend the journal by inserting the omitted name.

The motion is overruled.