Opinion by
Mason, C. J.The first question presented for consideration in this case is, whether a special term of the district court is such a term as the statute contemplates when it declares that ‘£ if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to judgment as in case of non-suit.” Why should it be said that this language refers to a general rather than to a special term 1 The latter is a term provided for by law as much as the former; *24When a case is continued, it is to the next legal term, whether general or special. The cases on the calendar are then to come up for trial, and declarations should be filed as directed by statute.
It is true that where a person enters into a recognisance to appear at the next term, and a special term is afterwards appointed, his recognisance will not be legally forfeited by his non-appearance at that special term. The recognisance is in the nature of a contract to be performed on a particular day. That day cannot be changed by one of the parties. But the filing of' a declaration as required by the statute is merely a rule of practice which the attorneys of the court are required to understand and observe. In the present case, the argument against such a construction would be still farther weakened by the fact, that the cause was continued expressly to the special term. The ruling of the court below in this respect was clearly correct.
The plaintiff having been non-suited, a jury was empanneled in pursuance of the statute “ to inquire into the right of property and right of possession of the defendant to the goods and chattels in controversy.” Before that jury the plaintiff offered testimony to prove ownership of property in himself. This, on being objected to, was rejected by the court, and we are now to inquire whether this rejection was erroneous.
The case in 1 Scam. 213, seems to favor the position taken by the defendant in error; but that was an action of assumpsit, in which the defendant had made default, and a jury had been called to assess the damages. The court in that case decided that the defendant had no right to introduce witnesses.
But our statute seems to contemplate that after the plaintiff, in an action of replevin, has been non-suited, he may still show that the defendant has sustained no substantial damage, for the reason that he was not the owner of the property. It declares that in such cases a jury shall be empanneled to inquire into the right of property and right of possession of the defendant. That jury can certainly decide more understandingly after hearing testimony on both sides. And if the plaintiff in *25such cases is allowed to introduce any evidence at all, that which was proffered and rejected in this case was certainly material and proper. The case of Belt v. Worthington, 3 Gill and Johnson, 247, is in point, and sustains the position just taken.
But it is contended, that even if there was error in the ruling of the court below, the proper remedy was to move the court to set aside the inquest. Such is the course prescribed in New York and England, for the reason that there, an inquiry of damages in case of non-suit or default does not take place in open court, as with us, but before the sheriff, and a jury summoned by him for that purpose. If an error be committed by the sheriff, it is very proper that the court to which the inquest is returned should set the same aside and direct a new inquiry of damages. But it would seem at least unnecessary to apply to the district court to set aside an inquest, because that very court had committed an error. The courts in Illinois seem to have followed the New York rule, probably without reflecting that the reason of the rule had ceased.
The judgment below will be set aside, and a new trial awarded.
Judgment reversed.