
    David Pemble vs. Henry Clifford.
    Tlie statute of 11 Geo. 2, although not binding upon us as a statute law, has been adopted in practice in tills state, and as a usag-e, has become obligatory on us. f 
      
    
    
      A scire facias on a replevin bond can not be resorted to, unless a writ fro retorno habendo be issued and returned elongata.
    
    TRIED before Mr. Justice Richardson,. at a special court held in Charleston, July, 1820.
    The plaintiff levied a. distress on the goods of his tenant James D. Cogan for rent in arrear. Cogan replevied the goods and entered into the usual bond to the sheriff with the present defendant as one of his securities or pledges. Cogan abandoned his action of replevin, but at what precise stage of the proceedings or at what time, was rendered uncertain, as the record was said to have been lost; and this was a sci. fa. on the replevin bond issued long after the abandonment of the action of replevin, but the plaintiff had never obtained or entered any judgment or instituted any other proceeding against Cogan, and the only question necessary to the decision of the case, was, whether the plaintiff could proceed by sci. fa. under these circumstances. The court below had ordered a nonsuit, and this was a motion to set it aside-.
    
      
      
         Vide City Council Charleston vs. Price. 1 MP Cord Rep. lt<
      
    
   Mr. Justice Johnson

delivered the opinion of the court:

The statute of 11 Geo. 2, although not binding upon us1 as a statute law, has been adopted in practice in this state, and as a usage, has become obligatory on us. This statute provides that the avowant in replevin may, if the condition of the bond be broken, take an assignment of it, and bring debt; and I am inclined to think, though not necessary to this case, that such an action might be supported at any time after the plaintiff in replevin abandoned his action.— The proceeding by sci. fa. on the replevin bond, is however fettered by other rules. It cannot be resorted to, unless a writ pro retorno habendo be issued and returned bf the sheriff elongata or eloigned. (I Sellon’s Trac. Tit, Replevin, sec. 4, 18.) So far as authority is necessary, this is conclusive, and reasoning on the subject would lead tó the same result. The proceeding by sci. fa. is not art Original proceeding, and is only applicable to cases where it is necessary, as in this case, and incases of bail generally, to make additional parties, or to carry into effect thejudgment of the court, as in sci. fa. on judgments, and presupposes that the party is concluded by a prior' proceeding : or in other words, it is a continuation of some other proceeding. Now in this case, the connection between the sci. fa. and the original writ of replevin, is wholly broken off by the absence of the intermediate pleadings, and their relation to, and connection with, each othei> cannot be traced through the record.

Cogdell, for the motion.

Clarke, contra.

The motion is dismissed.

Justices Coleock, Nott, Richardson, Gantt Huger, concurred.  