
    LYND v. BENJAMIN.
    December 30, 1837.
    
      Rule to show cause why the judgment should not he opened.
    
    As to the practice in replevin where the property has been delivered to the plaintiff, and the defendant does not appear.
    THIS was an action of replevin instituted to June term, 1837, No. 1207. The return of the sheriff was “ replevied, delivered, and summoned the defendant.” The property was delivered to the plaintiff. The defendant did not appear on the return day of the writ, and the plaintiff, having filed a declaration, on the expiration of the qua?'.'die post took judgment for want of an appearance by the defendant.
    The defendant obtained this rule, making an affidavit of de-fence on the merits.
    
      Thompson, for plaintiff.
    
      H. M Phillips, for defendant.
   Pur Curiam.—

It is in the discretion of the court to open a judgment like this where the application is seasonable ; and that discretion should be exercised, especially in a case where the plaintiff has, in replevin, obtained the property. The rule is therefore made absolute, and to prevent difficulties hereafter, we make the following order, under the authority prescribed by the act of 16th of June, 1836, section 21. (Stroud’s Purd. tit. Courts.)

“ Ordered by the court, that in every action of replevin, if the defendant does not appear at the return day of the writ, and he has been duly summoned, the plaintiff having filed his declaration may file a common appearance for the defendants, and proceed in the case by ruling him to plead as in other cases.”

Rule absolute.  