Broom v. Fox

Pur cur. Regularly, there can be no discontinuance without leave of the court, and this rule holds with peculiar force in replevins. 1 Leon. 105. There both the parties are actors, and yet the avowant cannot discontinue. 1 Stra. 112. When the goods are delivered to the plaintiff in replevin, the defendant has an evident interest in the suit, being entitled to a writ of retorno habendo, if the issue is found for him. When a claim of property is interposed by the defendant on the service of the process, the goods remain in his hands on his giving security, and the plaintiff proceeds for damages for the taking and detention. Hence arises a manifest difference as to the court’s granting leave to discontinue on the different returns of the sheriff. There may be cases however, where the court would in all probability refuse this liberty, even where the possession of the articles remains in the [532] defendant, on the sheriffs’ return; but the circumstances of the present case, as disclosed on the motion, do not appear to warrant our refusal of liberty to discontinue. Adjornatur.