Baldwin v. Cash

[426] The opinion of the Court was delivered by Sergeant, J. The question in this case is, whether a writ of replevin is to be ranked as a summons, or as another writ, in the construction of the Act relative to the fees which the prothonotary may charge and take; and we think it is more properly to be classed as the latter than the former. It is true, every writ of replevin directs the sheriff to summon the defendant in the writ, and that the writ of replevin is not regarded in Pennsylvania altogether as a proceeding in rent, but is a proceeding also against the' defendant in the writ personally; and under this view of it, the practice has uniformly been to insert in the writ a summons to the defendant to appear; and, for the greater security and convenience of the owners of personal property from whom the possession is improperly withheld, the action of replevin may be maintained by such owners in all cases, and may proceed on the summons alone, where the property has, been eloigned or improperly disposed of. Weaver v. Lawrence, (1 Dall. 157); Bower v. Tollman, (5 Watts & Serg. 561). But still it is a mixed writ, partly in rem, and partly in personam, and essentially a proceeding against the property, the summons to the defendant being accessary and subordinate, so far as respects the frame of the writ. It would not follow that a writ should be ranked properly as a summons, merely because it is returnable or contains an order to notify the defendant to appear and take defence; it might still fall within the class of another writ, as in the instance of a scire facias. We are therefore of opinion that the prothonotary had a right to charge the fee of 75 cents for the writ of replevin, and that there was no error in the opinion of the court below. Judgment affirmed.