
    Luther D. Williams agt. Lewis W. Raymond.
    A motion to set aside proceedings before a sheriff on a writ of inquiry upon the merits, can only be heard at general term.
    
      December Term, 1845.
    Motion by plaintiff to set aside a rule directing a writ of inquiry to issue; the writ of inquiry and all subsequent proceedings by defendant.
    This was an action of replevin, commenced by 'plaintiff against defendant: after the cause was at issue, and in March last it was discontinued by stipulation of plaintiff’s attorney and consent of defendant’s attorney. In September last, defendant’s attorney entered a rule in the common rule book, reciting that plaintiff’s attorney had given notice of a rule for discontinuance in the cause, and it was ordered judgment of discontinuance, and that a writ of inquiry issue to assess the damages of defendant for the detention of the property, replevied by plaintiff. The writ of inquiry was subsequently issued and an inquisition taken by a sheriff’s jury, at which testimony was taken on the part of the defendant; the plaintiff’s attorney offered evidence on his part, which was objected to by defendant’s attorney, and rejected by the sheriff. Plaintiff’s attorney then offered to cross-examine defendant’s witnesses to certain points, which was rejected by the sheriff. The evidence given on the inquisition was set forth in plain-, tiff’s moving papers, and brought up in the argument upon the merits.
    W. H. Kinney, plaintiff's counsel.
    
    T. T. Loomis, plaintiff's attorney.
    
    1ST. Hill, Je., defendants counsel.
    
    B. W. Dodge, defendants attorney.
    
   Jewett, Justice.

Denied the motion with costs, on the ground that a motion to set aside proceedings before a sheriff, on a writ of inquiry upon the merits, can only be heard at general term.  