
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Hunter v. Flagg.
    
    A distress may be replevied at any time before sale under the st. 2 W. & M. c. 5, although the five days limited by the statute have expired.
    Where there is uo intrinsic defect, or want of form, in the writ, it will not be set aside upon a motion to quash.
    Motion to reverse a decision of Johnson, J., in Charleston. The case was, th at the plaintiff distrained for ren t in a rrear, on the 7th ¡VI ay, and the goods were replevied on the 13th of the sumo mouth. On a rule to shew cause, why the writ of replevin should not be quashed, and the goods returned, Johnson, J., quashed the wrii, on the ground of irregularity ; becau e, .tit eei'ie -ssued after a lapse of fiv.! dsns 'rotn the (ire of the dis.itss levied, cn^trery to rhe stat. 2W.de. si, c 5. 1\L.«5 A d he ordered ihe delendu f to shew cause why an attachment should not issue against him, if he should fail to return the goods. &c.
    Griggs, for the motion,
    contended, as he had done in the district court, that the stat 2 W. & M. c. 5, in authorizing a sale of the distress, which could not be sold at common law, but only detained as a pledge, does not take away, or restram, the rigiit of replevin, as it stood at common law. That the oovti could not, on motion, order a retu» ¡ of the distress. That life {.¡c* of a wrongful, or illegal taking, must be tried by jury; and, there is no other legal v i/ of enforcing a return of the distress, but by the writ de retorno habendo.
    
    Lowndes, contra,
    
    argued, that the statute is ¡super *,?:ive, and commands the sheriff to sell at the expiration of fire days; and, therefore, after that time, the goods are not .vepl isable; and that a different conskuction, would vender the statute nugatory.
   By the Court.

'■* common law, digresses could not be sold. The stat. 2 W. & Hi. c. 5, enact j, that the distrainer may, with the sheriff, &c. cause the distress to be appraised and sold, if the ten, ant, or owner, shall not, within fiye days after the distress taken, and notice thereof, as by the statute is required, replevy, &c. The distrainer is not authorized to sell the distress within five days, because the tenant, or owner, is allowed that time to replevy. After the expiration of the five days, he ntjay cause the distress to be appraised and sold. There is no time limited for the exercise of this authority. The goods may be kept in pledge, or sold ; and, there is nothing expressed in the act, or to be collected by implication, or intendment, to warrant the construction given to it by the district court. At common law, distresses were replevisable at any time. And since the statutes 2 W. & M.c. 5,and 8 Ann. c. 14, P. L. 97, it has been determined, that a replevin may be granted at any time before sale. 2 Barnadiston, 415. 19 Vin. 19, 20. Besides, upon inspection of the writ of replevin, nothing appears to warrant the court to quash it. There is no intrinsic defect, or want of form, or substance, to justify the court in setting it aside on motion, as a void writ.

Decision of the district court reversed.

Present, Tkezevant, and Brevard, Justices.  