Majority
p. 163Regan vs. Priest & Jones.
Headnote
The plaintiff in replevin, need not file an affidavit of merits, in order to prevent the defendant from moving the cause out of its order on the calendar, and taking an . inquest.Motion by the plaintiff to set aside an inquest taken by the defendants at the last circuit in New-York. The action was replevin, and the defendants gave notice of trial and placed the cause on the calendar, and no affidavit of merits being filed by the plaintiff, they moved the cause out of its order and took an inquest. The plaintiff had not given notice of trial.
T. L. Danagher, for the plaintiff.
G. Stevens, for the defendants.,
I know of no practice which requires a plaintiff in replevin to make an affidavit of merits, in order to prevent an inquest being taken against him. The de
p. 164
fendant in replevin may bring the cause to trial, but he cannot do so out of its regular order on the calendar. This inquest was irregular, and must be set aside with costs.
Motion granted.