
    
      Ex parte Fort.
    UTICA,
    Aug. 1826.
    The defendant Jhe^piaStiff ⅛ replevin, tho’ ^ turned,^especí-¡s ’withdrawn sheriff’s hands,
    porAhe pro* ceedings, even aiter error brought, the °°“rt fendant to file p^unc.
    
    
      J. A. Spencer,
    moved for a mandamus to the C. P. of Madison county, commanding them to vacate a rule allowing Ratmour and Smalley, defendants in replevin, in that court, at the suit of Fort, to file a plaint nunc pro tunc. The facts were, that the clerk of Fort's attorney had made out and delivered a plaint in replevin to the sheriff of Madison, against Ratmour and Smalley ; which was executed. But the attorney, on the fact coming to his knowledge, being satisfied that the action would not lie, withdrew the plaint : and it was never returned. The attor- , ney for Ratmour and Smalley, however, entered their appearance and proceeded to non pros the plaintiff. Where- ■ upon, Fort brought error to this court; and assigned, among other errors, diminution in the want of a plaint in the C. P. The attorney of Ratmour and Smalley applied to the C. P. who granted them leave to file a proper plaint nunc pro tunc ; so that Fort's writ of error would be defeated in this respect.
    
      Spencer, insisted that the plaintiff had a right to withdraw the plaint. The only consquence was, that he forfeited the bond which he had given, to prosecute the suit with effect. Until the plaint was returned, and the plaintiff appeared, the defendants could not non pros him ; but should have taken their remedy upon the bond. (2 Archb. Pr. 64. 1 B. & P. 410.) The right to non 'pros both in England and this state, depends on statute ; in England, on 13 Car. 2. St. 2, c. 2, s. 3. (1 Tidd, 412.) .Under that statute, th? defendant mav appear and non pros the plaintiff, though the process be not returned, (id. 413. 'I Mod. 32.) But it will be seen that our statute on the same subject, (1 R. L. 345, s. 11,) differs from the English. It requires the return of the process.
    
      S. Chapman and A. Stewart, contra,
    cited Col. and Cain. Cas. 61; 1 Archb. Pr. 228, 9.
   Curia.

The statute (1 R. L. 91, s. 1,) makes it the duty of the sheriff to return the plaint to the next court of common pleas. It is, in this respect, like any other process in his hands. Now, whether the plaintiff had a right, in this case, to withdraw the process or not, we think the common pleas were correct in the rule which they made. The defendant should not be deprived of his non pros by the act of the plaintiff in withdrawing the process. It is served. The defendant’s duty to himself, requires that he should defend his rights. He retains an attorney, incurs expense ; and his only remedy for his costs, in ordinary cases, is by non pros. He has, we think, the same remedy in replevin. If, as insisted by the counsel for the relator, it is necessary that the process be actually returned, to warrant the non pros, this, of itself, shews the importance of allowing process to be filed nunc pro tunc, in order that the proceedings may be sustained in point of form. And more especially where the process is withheld from the files by the plaintiff.

The motion must be denied.

Motion denied.  