Murphy v. Jenkins

1 Denio 669

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1845
• Status: Published

Opinion

By the Court, Jewett, J.

The irregularity complained of consists in having the value of the property assessed by a writ of inquiry. It is insisted that it should have been ascertained by the jury on the trial. This depends entirely upon the provisions of the statute. As I understand these provisions, whenever the property specified in the writ has been delivered to the plaintiff and the defendants recover judgment, (except when the property has been distrained,) by discontinuance, or nonsuit, or by default, or in any other, manner, after having pleaded any matter, which, if admitted by the plaintiff, would be sufficient in law to entitle such defendant to a return of the property, such judgment must be for a return of the goods replevied, or for the value of the goods at his• election; and in case the defendant elects to take judgment for the value, such value, where there is a trial, must be assessed by the jury on such trial, and in all other cases by writ of inquiry. (2 R. S. 531, §§ 53, 54, 55.)

There was no trial in this case. The plaintiff did not appear or give any evidence, and for that cause was nonsuited. As the-defendants elected to take judgment for the value of the property, a writ of inquiry was the proper mode of assessment.

Motion denied.