
    *Thomas M’Colgan v. Jahes Huston.
    Where a writ of replevin is lodged with the sheriff, who retakes part of the goods, and returns Elongata as to the rest, a Withernam may issue.
    An alias and pluriés are unnecessary in this State, as a writ of replevin is a returnable writ; and, therefore, on the return of Elongata on the original writ, a Withernam may issue.
    Where property, taken by a Withernam, is claimed by a third person, the Court will not, on motion of the claimant, decide on a contested right.
    This was an action of replevin. The property of Thomas M’Colgan, who was the tenant of Huston, was distrained for rent on the 8th of July, 1819.
    On the 12th, a writ of replevin was lodged with the sheriff, who retook a part of the distress, but not the whole, and on the - day of-, the sheriff made a return of elongata, as to the part of the distress he had not been able to find.
    On the 7th August a withernam was applied for and obtained, upon which the sheriff took a negro man as the property of the defendant, Huston.
    It further appeared, that immediately before the withernam, issued, the defendant, Huston, had conveyed in a deed of gift, this negro, with other property, to his brother, Jennings.
    An application was then made to the Circuit Oourt to quash the withernam, on two grounds :
    1. That it was a process unknown in this State; and,
    2. That if it were not obsolete, it could only issue after an alias and pluries. The judge on the circuit, overruled the motion to quash the withernam.
    
    A motion was then made, on behalf of Jennings, to discharge the negro man, on the ground that he was the property of Jennings before the withernam issued ; and this motion was also refused.
    A motion was now made to reverse the decision of the Circuit Oourt.
   *The opinion of the Court was delivered by [*445

Huger, J.

I shall proceed to consider the different grounds taken in this case, in the order they were submitted.

The action of replevin has been long used in this State, and the process of withernam is only incidental to it. That it has not been used, may be the effect of accident; perhaps no fit occasion has hitherto been presented for its application. As long as the sheriff could retake the distress, the withernaoji would not be resorted to ; but if ever he made the return of elongata, “that the property had been eloigned,” it is difficult to imagine how the process of the withernaon could have been neglected; its use appears essential to the action of replevin. It would, at least, be very incomplete without it, and I am unable to discover any objection to its use. It is a common law process, and appears as applicable to the circumstances of this country as any other. I am of opinion, therefore, that on the first ground taken, the appellant must fail.

But it is contended, that at common law it could only issue after an alias or pluries, and that, in this case, it followed immediately the original writ of replevin.

At common law, the original writ of replevin was not a returnable process; it was only directory. The sheriff was commanded to restore the goods distrained to the plaintiff, and if he did or did not, the writ did not require him to make a return of his proceedings into Court. An alias and pluries were necessary, therefore, to bring him into Court, for the alias required him not only to restore the distress, but if he did not, to assign his reasons, for not so doing, to the Court, vel nobis causam significas, in the language of the writ. The alias and pluries are, how-, ever, rendered unnecessary in this State, by the Act of 1808, which makes the writ of replevin a returnable writ. The sheriff, therefore, under our Act, returns elongata, on the original writ, and thereby renders unnecessary an alias and pluriesA For, at common law, the withernam ^always follows the return of elongata, the object of which is to . . „ take from the defendant, goods to such an amount as will secure *- the return of the plaintiff’s. It is, in the language of the law, “ a reprisal.” See Weaver v. Lawrence, 1 Dal. 156. 6 Bac. Dalton’s Sheriff. Gilbert on Replevin. Sellon’s Practice. I am, therefore, of opinion that the appellant must also fail on the second ground.

The motion made in behalf of Jennings, appears to have no connection with this case. He is not a party to the suit; he, however, set up a claim to the negro, and, on motion, wished the Circuit Court to decide-on a contested right of property. The Circuit Court promptly refused to interfere. If his property has been taken by the sheriff, without authority, he has another remedy.

The motion is therefore dismissed.

Bay, Colcook, Nott, Gantt, Johnson and RichaRJdson, JJ., con curred.

See Miller’s Cowp. 230. 
      
       5 Stat. 565.
     
      
       1 N. & McC. 127.
     