Gale v. Hoysradt , 1 How. Pr. 72 ( 1845 )

By the Court,

Beardsley, J.

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.^(a) 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) 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.)