1785.
WEAVER verʃus LAWRENCE.
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 lawful for the Juſtices of each County, to grant writs of replevin in all cafes whatſoever, where replevins may be granted by the laws of England, taking ſecurity as the ſaid law directs, and make them returnable to the reſpective courts of Common Pleas in the proper county, there to be determined according to law.” 1 State Laws, 43.
This act ſeems then to have made a very conſiderable alteration in the proceedings in repelvin; for, 1ſt. It does not recognize two kinds of replevin, one by plaint, and the other by writ; 2dly. Replevins 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, ſo had been the practice under the law; and in writs of replevin here (as in other caſes) a ʃummons to the defendant to appear, is always inſerted, and a preciſe 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 obſerved, puts an end to the ſuit on the replevin, ſo that, if it is afterwards revived, it muſt be by the writ de proprietate probanda. But in Pennʃylvania, the practice on a claim of property has been agreeable to the act of aſſembly; the ſuit goes on, and, although the claim prevents the delivery of the goods to the plaintiff in replevin, yet, the defendant gives ſecurity to deliver them, if, on trial, the property ſhall not be found in him. This practice, therefore, clearly ſupports that the trial of property was intended, by the act of aſſembly, to be in the Court of Common Pleas, and not elſewhere.
No writs de proprietate probanda have hitherto iſſued in this ſtate. The ʃummary writ under the ſtatute of Marlbridge, ſeems, indeed, to be the only one, which can, in moſt cafes, be of real uſe, by the immediate intervention of an inqueſt to decide the claim of property; but, for the reaſons before aſſigned, that cannot iſſue here. The judicial writ too, if it could iſſue agreeably to our act of Aſſembly, would rather occaſion delay, than expedite the cauſe, and could in very few inſtances anſwer the ends expected from it. For, firʃt, it cannot iſſue till after the return of the pluries writ of replevin, when the time would, perhaps, be elapſed, in which it would be of moſt importance to determine the queſtion of property: and, ʃecondly, if it ſhould iſſue and be executed, it would not be final, in caſe the property ſhould be found for the defendant, being only an inqueſt of office, and the plaintiff ſtill entitled to a new replevin, or an action of treſpaſs againſt the Sheriff.
In England, moſt cafes of replevin are founded on previous diſtreſſes for rent; and, it is even ſaid in ſome books that it lies in no other. But here it iſſues wherever a plaintiff claims goods in the poſſeſſion of another; and accordingly, things of great value, as ʃhips, are frequently replevied. If, therefore, a haſty change of poſſeſſion ſhould take place by a Sheriff's inqueſt, it might be attended with great miſchiefs; and veſſels leaded, and ready to ſail, might be ordered out of the poſſeſſion of thoſe, who have long held them, although able and willing to give ſecurity to the value.
On the whole, after the preſent practice on replevins has been of ſo many years ſtanding and ſeems founded on a law of our own, we think it would be improper to make ſuch an alteration, as would be occaſioned by iſſuing judicial writs de proprietate probanda.