
    The People ex rel. Taylor v. E. D. Tripp.
    
      Replevin: Judgment by discontinuance: Assessment of defendants' damages. When judgment of discontinuance, in replevin, Is rendered by a justice against plaintiff, if defendant -waive a return of the property, he is entitled to have his damages assessed.
    
      Heard and decided July 9th.
    
    Motion for mandamus.
    Taylor was defendant in a replevin suit before Tripp, who was a justice of the peace in Clinton County. The writ of replevin was not served a sufficient time before the return day, and the justice declined to proceed.
    The defendant thereupon waived a return' of the replevined property, and asked the justice to proceed to assess its value, which he declined to do.
    
      JR. Striclcland, for the motion.
    
      JBJ. Walbridge, contra.
   Per Curiam.

Where a plaintiff in replevin, before a justice of the peace, has judgment of discontinuance rendered against him by the justice, it is the duty of the justice to proceed and assess damages in favor of defendant, when he waives a return; and if the justice refuses to do this, a writ of mandamus will he allowed, to compel him to do so.

Mandamus issued.  