Harper

Replevin. Defendant had judgment on motion for a nonsuit upon the opening statement of counsel for plaintiff. Plaintiff appeals from the judgment by bill of exceptions.

The complaint sets forth the ordinary action of claim and delivery. Counsel for plaintiff in his opening statement stated to the court the nature of the suit; that the chattels, the subject of the action, were included in a chattel mortgage executed by defendant to plaintiff’s assignor, and that the action is one of claim and delivery, based solely on said mortgage; that “the mortgage contained a provision that the party of the first part [defendant in this action] might retain possession of said personal property until default of the payment of the interest or principal, and, after default, the mortgagee [plaintiff herein] should be entitled to the possession of the property in said instrument described.” It appeared also that default had been made and that defendant still retained possession. It was conceded that an action to foreclose the mortgage had been brought and -had been dismissed upon application of the mortgagor, defendant herein, without notice to plaintiff and without any trial of the merits of the…