
    Kerker & Willetts vs. Carter.
    Where, in replevin, the cause was reached at the circuit in its regular order on the calendar,_ and the defendant refused to appear; whereupon the plaintiff entered his default, and the cause proceeded, both parties treating it as an inquest: Held, on bill of exceptions for the exclusion of evidence proposed by the defen. dant, that he could not be allowed to change his ground, and claim rights beyond what are incident to an inquest
    On an inquest at the circuit, the defendant may examine the plaintiff’s witnesses to controvert the evidence given to sustain the action; but he cannot, under color of exercising this right, show a substantive defence aliunde.
    
    The rule on this point laid down in Hartness v. Boyd, (5 Wend. 563,) approved, and the previous case of Green ads. Willis, (1 Wend. 78,) regarded as overruled.
    Replevin, tried before Cushman, C. Judge, at the Albany circuit, in September, 1839. The cause was reached in its regular order on the calendar; the defendant was ‘thereupon called, and refused to appear; his default was entered by the clerk, and the plaintiffs proceeded to take am inquest by default. After a witness had given evidence for the plaintiffs, the defendant’s counsel put a question to the witness, which did not go to controvert the evidence which had been given by the plaintiffs, but went to show a'substantive defence aliunde. The plaintiffs’ counsel objected, that such a question could not be put on an inquest—the defendant’s counsel insisted that it could be put on an inquest. The judge decided for the plaintiffs, and overruled the question. The defendant excepted.
    
      M. T. Reynolds, for defendant.
    
      R. W. Peckham, for plaintiffs.
   By the Court, Bronson, J.

Although the cause was called in its regular order on the calendar, the defendant refused to appear, and his default was entered. Both parties treated it as an inquest at the time, and the defendant cannot now be allowed to change his ground.

The case of Green ads. Willis, (1 Wend. 78,) was virtually overruled by Hartness v. Boyd, (5 Wend. 563,) which we think lays down the true rule, and was properly followed by the judge.

New trial denied.  