Fort v. Smalley — 6 Cow. 439

Majority

p. 439

Fort against Smalley and Ratmour.

ALBANY,

Oct. 1826.

Headnote

On error from the Madison C. P. The action below was replevin by Fort against Smalley and Ratmour.

The proceedings were by plaint. The record contain- - iicfi eel a placita of June 15th, 1824. It then stated thatomaZ- ley and Ratmour were summoned to appear, and did appear in the C. P. on the same \bth of June; and that “ Fort does not farther prosecute his bill or action of re-plevin,” &c. Then judgment for the defendants for costs. The record was signed October 16iA, 1824.

A defendant whether^sued by. Plamt or writ, may no» pros the plain-

tlí!¿ut ¡t is cr_ ror, ii it ap-cord,°thatethe ”0?l P™3 term with the return of the process.

J. A. Spencer, for the plaintiff in error.

G. C. Bronson, contra.

Curia, per

There are two questions to be decided ; 1. Can a plaintiff in replevin be nonpross-ed ? 2. If he can, is not the judgment premature, being on the return of the plaint ?

The first point was considered at the last term,^[1] on a motion for a mandamus to vacate a rule made by the court below in this cause ; and we see no reason to change the opinion we then expressed. By the statute, (1 R. L. 91,) two modes of proceeding, by writ and by plaint, are authorized : the plaint to be returned to the next common pleas; “ and the like proceedings shall thereupon be had, in the same court, as may, or ought to be had upon a writ of replevin.”

(a) (a) Vid. ante, 43.

p. 440

The eleventh section of the act concerning costs, (1 R. L. 345,) provides, that where any person shall sue out of any court, any process against any person, who shall be imprisoned on the same, or put in bail, or cause his appearance to be entered, if the plaintiff shall not declare before the end of the next term, the court may adjudge costs to the defendant. The judgment of non pros is not mentioned by name ; but, by the practice of the courts, that judgment is, rendered for not declaring ; and if a plaint is to be considered process within the meaning of the act, costs may be awarded in that case. If a plaint is not technically process, still the same result will follow, a&,-by-the act concerning replevin, the same proceedings are to be had upon a plaint, as upon a writ of replevin.

According to the English practice, the action is coim-menced either by writ or plaint, as with us. There, if the defendant w ish to expedite the plaintiff, he must enter his appearance and rule the plaintiff to declare. If he do not, the defendant may sign judgment of non pros. (2 Archb. Pr. 68.) No distinction is made, whether the suit be commenced by writ or by plaint. There too, as here, the plaintiff, before he executes a plaint, takes a bond with sureties. But that makes no difference as to the mode of conducting the suit.

Whether, therefore, we follow the English practice, or look solely at our own statute, I think it is regular to enter a judgment of non pros, in replevin, as in other actions.

But, by the record in this case, the judgment seems to be entered at the return of the process. This is premature and erroneous: and the judgment must be reversed for this cause.

Judgment reversed,