This motion is not to be distinguished in any essential feature from People v. Tripp, 15 Midi., 518.
When the service of the writ was set aside, the case was at an end, as the return day had passed, and there could be no further service. This amounts, in legal effect, to a discontinuance of the cause. The statute clearly provides in such a case that a party defendant, whose property is taken, may waive a return; and in such a case he is entitled to his assessment of damages. The property having been taken under the writ, the court, whoso process was used, must have power to redress the mischief, and could order a return. But the statute allows the defendant, if he chooses, to take judgment for its value.
The writ is allowed, with costs against the plaintiff in replevin.