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R
EPLEVIN–The defendant pleaded property and gave bond ; upon which Levy for the plaintiff, moved for a writ de proprietate probanda; and after argument, on a rule to fhew caufe why it fhould not iffue, the PRESIDENT delivered the opinion of the Court as follows.
SHIPPEN, Preʃident.– In England there are two kinds of replevin ; Firʃt by Common Law, when the writ iffues out of the court of Chancery : Secondly by the ftatute of Marlbridge which enables the fheriff to make replevins without writ, and then, having taken fecurity, he proceeds on the complaint of the plaintiff, either by parol, or precept to his bailiff. In the latter cafe, the writ de propriatate probanda, iffues at once upon claim of property ; and, being tried by an inqueft, if it is found for the plaintiff, the fheriff goes on to make the replevin ;but, if for the defendant, he forbears. This fummary proceeding, with regard to the writ de propriatate probanda, is confined, however, to the cafe of a plaint in the fheriff's court, under the ftatute ; for, when replevins are at common law, no writ de proprietate probanda iffues till after the return of the fheriff on a pluries replevin ; the original writ, or the alias, being only directory to the fheriff to make replevin, and proceed in the county court, and are not returnable procefs, as the pluries is by having is the claufe of ‘‘ vel nobis cauʃam ʃigniʃices. ’’ It, therefore, the pluries is returned into the Kings-Bench, or Common-Pleas, with a claim property by the defendant, a judicial writ de proprietate probanda may iffue returnable into either of thofe courts. But on this writ, if the fheriff's inqueft find property in the defendant, the plaintiff is not concluded, being only an inqueʃt oƒ oƒƒice; and he may either bring a new replevin, or an action of trefpafs againft the fheriff, in which the queftion of property fhall be finally tried. But when the parties have appeared in bank, and the defendant claims property on plea, no writ de proprietate probanda can iffue at all, but the claim muft be tried in court.
Having thus ftated the law in England, we muft now enquire on what footing replevins are in Pennʃylvania, and under what law they iffue?
It is clear, that in this ftate there can be no replevins under the Statue oƒ Marlbridge, fince there is here no ʃuch county court to cuter plaint as in England, nor any fheriff empowered by his own authority to make replevin ; and, confequently, there can be no ʃummary proceeding, as to the writ de proprietate probanda. With refpect to writs of replevin at Common Law, thefe, likewife, cannot be iffued in Pennʃylvania, for want of a court of chancery, from which they might iffue as an original writ. Hence it was neceffary to make a law for curfelves, and this was accordingly done, in the year 1705, by an act of Affembly, which directs, that ‘‘ it fhall be
1785.
‘‘ ful for the Juftices of each County, to grant writs of replevin in
‘‘ all cafes whatfoever, where replevins may be granted by the laws
‘‘ of England, taking fecurity as the faid law directs, and make them
‘‘ returnable to the refpective courts of Common Pleas in the proper
‘‘ county, there to be determined according to law.’’ 1 State Law. 43.
This act feems then to have made a very confiderable alteration in the proceedings in repelvin ; for, 1ft. It does not recognize two kinds of replevin, one by plaint, and the other by writ ; 2dly. Raplevins are made always returnable writs, and the parties appearance required on the return ; and 3dly. They are directed to be there determined, that is, in the Court of Common Pleas. – As the proceedings are different, fo had been the practice under the law ; and in writs of replevin here (as in other cafes) a ʃummons to the defendant to appear, is always inferted, and a precife day given for his appearance. Nor is the writ liable to be defeated by a claim of property, as it is in England; where that claim, as I have already obferved, puts an end to the fuit on the replevin, fo that, if it is afterwards revived, it muft be by the writ de proprietate probanda. But in Pennʃylvania, the practice on a claim of property has been agreeable to the act of affembly ; the fuit goes on, and, although the claim prevents the delivery of the goods to the plaintiff in replevin, yet, the defendant gives fecurity to deliver them, if, on trial, the property fhall not be found in him. This practice, therefore, clearly fupports that the trial of property was intended, by the act of affembly, to be in the Court of Common Pleas, and not elfewhere.
No writs de proprietate probanda have hiberto iffued in this ftate. The ʃummary writ under the ftatute of Marlbridge, feems, indeed, to be the only one, which can, in moft cafes, be of real ufe, by the immediate intervention of an inqueft to decide the claim of property; but, for the reafons before affigned, that cannot iffue here. The judicial writ too, if it could iffue agreeably to our act of Affembly, would rather occafion delay, than expedite the caufe, and could in very few inftance anfwer the ends expected from it. For, firʃt, it cannot iffue till aƒter the return oƒ the pluries writ oƒ replevin, when the time would, perhaps, be elapfed, in which it would be of moft importance to determine the queftion of property : and, ʃecondly, if it fhould iffue and be executed, it would not be ʃinced, in cafe the property fhould be found for the defendant, being only an inqueft of office, and the plaintiff (illegible text) entitled to a new replevin, or an action of trefpafs againft the Sheriff.
In England, moft cafes of replevin are founded on previous diftreffes for rent ; and, it is even faid in fome books that it lies in no other. But here it iffues wherever a plaintiff claims goods in the poffeffion of another ; and accordingly, things of great value, as ʃhips, are frequently replevied. If, therefore, a hafty change of poffeffion fhould take place by a Sheriff's inqueft, it might be attended with great mifchiefs ; and veffels leaded, and ready to fail, might be ordered out of the poffeffion of thofe, who have long held them, although able and willing to give fecurity to the value.
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On the whole, after the prefent practice on replevins has been of fo many years landing and feems founded on a law of our own, we think it would be improper to make fuch an alteration, as would be occafion by iffuing judicial writs de proprietate probanda.
The rule difcharged.