
    Greenwade vs Fisher.
    
      Oct. 14.
    
    Error to the Trigg Circuit.
    
      Replevin, Judgment de retorno.
    
    The case stated.
   Chief Justice Ewing

delivered tlie opinion of the Court.

Greenwade executed bond, and sued out a writ of replevin for three slaves, under the statute of 1840, (3 St. Laws, 502.) No return seems to have been made upon the writ. At the April term, to which the writ was made returnable, after a declaration had been filed, the defendant, by his counsel, moved the Court to quash the writ, which was done, and judgment rendered against the plaintiff, for costs and for a return of the slaves. From which judgment the plaintiff has prosecuted a writ of error to this Court. No affidavit was filed, as required by the statute, previous to suing out the writ, nor was a bond, executed strictly in conformity to the requisitions of the statute. But though these irregularities existed, the writ should not have been quashed. It subserved the purpose of a citation or summons to the defendant at least. Had the writ been executed by a seizure and delivery of the property to the plaintiff, the seizure of the slaves only, should have been quashed, and a return thereof to the defendant awarded, and the proceedings should have been permited to progress on the service of the writ as a summons. But, it not appearing by the return of the writ, that it had been executed, and the slaves delivered to the plaintiff, it was erroneous to award a return of the slaves.

Though no bond may have been executed on suing out a writ of replevin, yet if the writ had not been executed and the property had not been delivered to the plaintiff, it was error to quash the writ and render judgment for the return of the property. The writ was good as a citation, and the ease should have progressed.

Cales Sf Lindsey for plaintiff

The judgement of the Circuit Court is reversed, and the cause remanded for further proceedings.  