
    Bennett v. Berry.
    “ After the return1 of elongata to a writ of replevin, the plaintiff may have a writ of capias in withernam*
    
    ERROR to the Union Circuit Court.
   Perkins, J.

Motion for a writ of capias in withernam, founded on the sheriff’s return of elongata to a writ of replevin. Motion denied; which is the error assigned.

Two questions are presented for consideration: 1. Can the Courts of this state legally^ issue the writ of capias in withernam? 2. If so, was the plaintiff entitled to it in this case?

We have, in this state, the action of replevin, and the capias in withernam is known to the common law as a" process incidental to and in aid of it. Its use is not inconsistent with our laws, and seems necessary to give full effect to the action to which it is incidental. It not unfrequently happens, as in the present case, that the goods sought to be replevied are concealed, or removed beyond the reach of the officer. Jn such event, without some ancillary process which shall produce their surrender, the replevin fails. The object of the withernam is to cause such surrender, by inflicting punishment upon the defendant while he withholds it. It authorizes the taking and detention of other goods of his, till those eloigned are yielded up. The use of this writ is sanctioned in some of the states of the Union, and we discover no reason why it should not be in this. In 'New York, the withernam is abolished by statute, and the authority to arrest the defendant when the goods cannot be replevied, substituted. Graham’s Pr. 728.

J. B. Sleeth, for the plaintiff.

The writ being regarded legal, no embarrassment arises upon the second question. The withernam follows the return of elongata to the original writ, if no plea be put in to stay it. Sell. Pr. tit. Replevin. There was such a return in this case; the writ was duly moved for; and no cause was shown why it should be stayed.

In England, it is true, this writ is not granted till after a plur.ies replevin, because there, till after the issue' of that writ, the proceedings in the action remain in the sheriff’s Court. But elongata may, in England, be the first return to the Superior Court, to which return, as has been said, the withernam succeeds. By our statute, the original writ of replevin is returnable to the Circuit Court, and if the return be elongata, the writ in question may follow. 3 Blacks. 147. Bac. Abr. tit. Replevin. — M'Colgan v. Huston, 2 Nott & M‘Cord, 444. — Swann v. Shemwell, 2 Harr. & Gill, 283.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  