Gale v. Hoysradt — 7 Hill & Den. 179

Majority

p. 179

Gale vs. Hoysradt.

Headnote

There is no distinction between the action of replevin and other actions in respect to the plaintiff’s right of submitting to a nonsuit at the trial.

Replevin. On the trial of the issue joined in this cause, the circuit judge charged the jury, who retired to deliberate, and afterwards returned into court with a verdict for the plaintiff as to a portion of the property, and for the defendant as to the residue.

J. H. Reynolds, for the plaintiff,

moved to set aside the verdict as irregular. He read affidavits tending to show that the plaintiff was not called after the jury returned into court, and that he did not appear, but intended to suffer a nonsuit.

G. W. Bulkley, for the defendant,

read counter affidavits, and insisted, among other things, that the plaintiff could not

p. 180

prevent a verdict, in a case like the present, by submitting to a nonsuit.

By the Court,

The plaintiff in replevin may suffer a nonsuit on the trial, as in ordinary actions. (Tidd’s Pr., Phil. ed. of 1840, p. 869; Ryan Moody, 355; 2 Carr. & Payne, 358; 2 R. S. 531, §§ 53, 56.)

Without going over what appears in the affidavits, I am satisfied the plaintiff was not called on the return of the jury to the bar, before taking the verdict. That should have been done, and the appearance or default of the party entered by the clerk.^[1] Upon a fact so vital there should be no room for doubt.

This verdict was irregular and must be set aside; but as it was a mistake of the clerk, no costs should be given to either party.

Ordered accordingly.

(a) (a) The practice has since been changed. The rules of May term, 1845, provide as follows: “ It shall not be necessary to call the plaintiff when the jury return to the bar to deliver their verdict; and the plaintiff shall have no right to submit to a nonsuit after the jury have gone from the bar to consider of their verdict” (Rules of Sup. Court, 1845, p. 24.)