Gale v. Hoysradt — 1 How. Pr. 72

Majority

p. 72

Joseph Gale vs John Hoysradt.

Headnote

A plaintiff in replevin may suffer a non-suit on the trial, as in ordinary actions. A verdict is irregular if the plaintiff is not called hy the clerk on the coming in of the Jury, before taking the verdict, and his appearance or default entered.

Motion by plaintiff to set aside verdict in replevin, on the ground of irregularity.—The principal facts in this case are reported at page 19 of the Special Term Reports, there is, however, additional testimony to the same point produced at this term, the point is, that the plaintiff was not called by the clerk on the coming in of the jury, that he did not appear and answer before the verdict was rendered.

J. H. Reynolds, Biffs Counsel. ' J. H. Reynolds,Atty.

G. W. Buckley, Lefts Counsel. G. W. Buckley, Lefts Atty.

The plaintiff in replevin may suffer a non-suit on the trial, as in ordinary actions, (Tidd’s Pr. Phil. ed. of 1840, p. 869; Ryan & M., 355; 2 C. & P., 358; 2 R. S., 531, § 53, 56.) Without going over what appears in the affidavits pro. and con., 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 ; upon a fact so vital there should be no room to 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.

Rule accordingly.