Page:United States Reports, Volume 1.djvu/167

156 

1785.

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  ful