Page:United States Reports, Volume 1.djvu/168

Rh 1785.  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