Newbern,

September Term, 1791.

#### SIMPSON versus CRAWFORD.

JONES, for the plaintiff, moved for leave to alter the capias which had been returned “ executed.” He observed that it had *56been issued by the clerk; that the instrument which the suit was brought was a deed, and the capias had been filled up in case while it ought to have been in covenant.

The defendant was not in court, and none of the gentlemen of the bar present, was employed for him.

The Court,

Ashe, J. Spencer, J. and Williams, J.

made no observation, but permitted the capias to the altered.