
    
      Henry Luther vs. Nathaniel Arnold.
    Plaintiff in replevin may give his bond to tho sheriff, for prosecuting the suit with effect, &e., before suing out his writ of replevin; semble (
      
      .)
    
    If after giving bond the writ is sued out in time for the pleadings to be perfected at or before the term next ensuing the distress, it is within time.
    
      Before O’Neall, J., at Edgefield, Fall Term, 1853.
    The report of his Honor the presiding Judge, is as follows:
    “ The defendant in this case issued his distress-warrant some time in the month of May, 1853, by virtue of which certain goods and chattels in the possession of Luther, the plaintiff, were distrained for rent. The plaintiff executed his replevin bond in the usual form, and retook the goods in possession, but did not issue his writ until the 7th of September following, in time for the next Court, to which term also he filed his declaration.
    
      “ The defendant moved to set aside the writ, upon the ground that plaintiff should have issued his writ sooner after the execution of his replevin bond, in accordance, as it was said, with the policy, the letter of the law upon this subject, and the reple-vin bond given in this case. 1 refused the motion, there being nothing in the law prescribing the time when the writ should issue — although the said writ is made returnable immediately— as was done in this case.
    “ The defendant appeals from my decision upon the ground that the law upon this subject requires the plaintiff in replevin to commence his action sooner than was done in this case, upon the grounds above indicated.”
    
      Spann, for appellant.
    
      Moragne, contra.
    
      
      
        (a) By tho Act of 1839, 5 55, (11 Stat. 36,) the bond must bo “ conditioned for prosecuting the suit with effect, and without delay, and for duly returning tho goods and chattels distrained, in case a return should be awarded.” See also Mil. Comp. 228 et seq. E.
    
   The opinion of the Court was delivered by

O’Neall, J.

The correctness of the ruling below is hardly questioned here. It has been suggested that the writ in replevin must precede the replevin bond. No such ground is made by the case. Indeed, the appeal itself concedes, that the bond may be given first. Such unquestionably is the rule where replevin is much more common than it is with us. Archbold’s Landlord and Tenant, 288, thus states the mode of replevying goods : “ Having obtained the consent of two responsible house-keepers to join in the replevin bond, give their names to the officer whom you intend to employ. After satisfying himself as to the responsibility of the sureties, he will give you a certificate to that eifect. Take this to the office of the under sheriif or re-plevin clerk, who will immediately prepare the replevin bond, and if the party and sureties be in attendance, it may then be executed. A precept to your officer to replevy the goods directed to your officer will then be given to you, and your officer will thereupon replevy them.”

This authority would seem to be enough to justify us in saying, that the replevin bond may be given to the sheriff before the writ issues. This is, however, unnecessary to the case before us. The only question made, is, Within what time, after the execution of the replevin bond, must the writ of replevin issue ?• The Act of 1808, 5 Stat. 565, requires the writ to be “ returnable immediately,” but says nothing, when it shall issue. The condition of the bond is to appear at the next term and prosecute the suit with effect and without delay. Arch-bold’s Landlord and Tenant, 259.

This, taken in connection with the provisions of our Act, that the writ shall be returnable immediately, and that the declaration must be filed within one month after the issuing of the writ, (Murphy vs. Sumner, 1 Hill, 216,) would seem to require (when the distress is made in time) that the plaintiff in replevin (the tenant) should sue out his writ in time for the pleading to be perfected at or before the term ensuing the distress. That was done in this case.

The motion is therefore dismissed.

Wardlaw, Withers, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed.  