Tennison v. Silverberg

Citations

• 77 Miss. 750

Syllabus

<p>1. RepleviN. Variance. Supreme court. Reversal.</p> <p>A judgment for the plaintiff in an action of replevin will not be reversed by the supreme court, in the absence of the evidence from the record, because of a variance -in the property as described in the affidavit and writ, and as described in the return of the officer, if any conceivable state of facts would justify the result reached.</p> <p>2. Same. Estoppel.</p> <p>A defendant in. a replevin may, by his eondnet in pointing out the property levied tfpon and bonding it without objection, estop himself from claiming, after trial, that the levy was not upon the property for which suit was brought.</p> <p>3. Same. Objection to be prompt. Code 1893, § 3733.</p> <p>An objection in an action of replevin, because of a' variance between the property sued for and that levied upon, should be promptly made, so as to afford the plaintiff opportunity to amend, where the - variance is merely in description, or to proceed for the value of the property, under code 1892, § 3723, providing for so doing in case the property be not taken.</p>