replevin

In a writ of replevin, the real matter in controversy is the sum claimed as rent, or the property replevied. If the replevin be, as in this case, of property distrained for rent, the amount for which avowry is made is the real matter in dispute. The damages are merely nominal. If the writ be issued as a means of trying the title to property, it is in the nature of detinue, and the value of the article replevied is the matter in dispute.

At Common Law. A form of action which lay to regain the possession of personal chattels taken from the plaintiff unlavirfu Uy. It differs from "detinue" in this, that it requires an unlawful taking as the foundation of the action; and from all other personal actions in that it is brought to recover the possession of the specific property claimed to have been unlawfully taken. In the United States. By statutes in nearly all the states, the actions of re-, plevin and detinue have been merged, the action being usually called "replevin," but sometimes "claim and delivery," so that such action lies for either the unlawful taking or the unlawful detention of property, i. e., either in the cepit or the detinet,

A personal action ex delicto brought to recover possession of goods unlawfully taken, (generally, but not only, applicable to the taking of goods distrained for rent,) the validity of which taking it is the mode of contesting, lf the party from whom the goods were taken wishes to have them back in specie, whereas, if he prefer to have damages instead, the validity may be contested by action of trespass or unlawful distress. The word means a redelivery to the owner of the pledge or thing taken in distress. Wharton. And see Sinnott v. Feiock, 165 N. Y. 444, 59 N. E. 265, 53 Li R. A. 565, 80 Am. St. Rep. 736; Healey v. Humphrey, 81 Fed. 990, 27 C. C. A. 39; Mc-Junkin v. Mathers, 158 Pa. 137, 27 Atl. 873; Tracy v. Warren, 104 Mass. 377; Lazard v. Wheeler, 22 Cal. 142; Maclary v. Turner, 9 Houst (Del.) 281, 32 Atl. 325; Johnson v. Boehme, 66 Kan. 72, 71 Pac. 243, 07 Am. St Rep. 357.

— Personal replevin. A species of action to replevy a man out of prison or out of the custody of any private person. It took the place of the old writ de homine replegiando; but, as a means of examining into the legality of an imprisonment, it is now superseded by the writ of habeas corpus

— Replevin bond. A bond executed to indemnify the officer who executed a writ of replevin and to indemnity the defendant or person from whose custody the property was taken for such damages as he may sustain. Imel v. Van Deren, 8 Colo. 90, 5 Pac. 803; Walker v. Kennison, 34 N. H. 259.

I. fr.

In old English law. Bail; delivery of a person on sureties or pledges.

^ 1. When a person distrained upon applies to the sheriff, and has the distress returned into his own possession, upon giving security to try the right of taking it in a suit at law, and, if that be determined against him, to return the goods once more to the distrainor < — or, where the goods ai'e of a perishable nature, to return a' pecuniary equivalent.' In modern practice, a remedy for any unlawful detention of personalty, the same being delivered to the claimant upon security given either to make out the injustice of the detention or to return the property.* Replevy. To obtain ppssession of personalty by an action of replevin. Repleviatole; replevisable. Obtainable by replevin. Opposed, irrepleviable; irreplevisable. Replevisor. The plaintiff in replevin. There must be a tortious taking or detention of the property; not a mere breach of a contract. ' Eeplevin lies wherever trespass lies for taking the plaintili's goods ^ with this difference: trespass will lie upon possession alone, while replevin' requires property in the plaintiff. All that is necessary to support the action is property in the plaintiff, either general or special, and a wrongful taking from his possession, actual or constructive. The idea_ suggested by Blackst6ne that replevin lies only for goods taken by *' distress " has no foundation. The complaint is, that the defendant took and unjustly detains the plaintiff's goods, not that he took them for any.particular pui^ pose."* ' Exp. Crow Dog, 109 U. S. 561 (1883), eases. See also, generally. State v. StoU, 17 Wall. 431 (1873), cases; Kingi;. Cornell, 106 U. S. 396 (1882); Bed Eock V. Henry, ib. 601 (1882); Cook County Nat. Bank v. United States, 107 id. 451 (1882); Bowlus v. Brier, 87 Ind. 396 (1882); Hogabooh v. Highgate, 55 Vt. 414 (1883). 2 Bynum v. Miller, 89 N, C. 395 (1883), Ashe, J. "F, re, again, plevir, to be surety,

— Skeat. L. L. replegiare, to take back the pledge, — 3 Bl. Com. 13. < [3B1. Com. 13. » [3 Bl, Com. 9, 146. ' See Taylor v. The Royal Saxon, 1 Wall. Jr. 326-29 (1859). ' Mead v. Johnson, 54 Conn, 319 (1886). The action is a special one, entirely regulated by statute, its whole object being to place the plaintiff in possession of personal property, -which he claims to be his either by a general or special title, with a right of immediate possession. The requirements of the statute must,- therefore, be strictly complied with before the plaintiff can avail himself of its aid.^ The better doctrine is that before an action can be brought, a demand of possession of the property must be made when necessary to terminate the defendant's right of possession or to confer that right on the plaintiff; but when both parties claim the ownership and the right of possession as an incident, no demand is necessary.'' The security which the plaintiff furnishes, as a substitute for the property, is called a replevin bond, claim-preperty bond, property bond, or, simply, the claimant's bond. No one account of the course of proceedings, every- -where applicable, can be given. The term is unknown to equity and admiralty jurisprudence, and under codes of reformed procedure the action has been replaced by " claim and delivery,'' a provisional remedy ancillary to a civil action to try the title to goods; ' the word " replevin " being used as if interchangeable -with such action.^ See Avowry; Capeee, Cepit; Detaimek; Distress; Eloign; Retornum. 2. A writ formerly used for liberating a man from prison or private custody, upon security given that he -n'ould be forthcoming to answer the charges. Otherwise known as the writ de homine replegiando, for replevying a man.* See Habere, Habeas corpus.

An action for the specific recovery of cattle or goods distrained or taken. The replevisor or plaintiff gives pledges or bond to prosecute and return the goods if judgment be given against him; whereupon the sheriff seizes the goods, and the plaintiff brings his action, to which the defendant makes avowry or conusance in the nature of a declaration setting up his title; and the following pleading of the plaintiff is called the 'plea, and so on. This is replevin in the detinuit; replevin in the detinet was where there was no reseizure of the goods, as if they had been eloigned, v. Capias in withernam. Personal replevin: an action or writ to review an imprisonment and enforce rights of personal liberty, like the old writ de homitie replegiando.

The name of one of the common-law actions, the distinguishing features of which are that it is brought to obtain possession of specific chattel property, and is prosecuted by a provisional seizure and delivery to plaintiff of the thing in suit. Replevy is the verb allied to replevin, and signifies to obtain, by means of the action or writ of replevin, possession of chattel property of which one claims to be owner. Repleviable, or replevisable: liable to be replevied; subject to be obtained by means of replevin. Property is said to be repleviable or replevisable when proceedings in replevin may be resorted to for the purpose of trying the right to such property. Thus goods taken under a distress are repleviable; for the validity of the taking may be tried in an action of replevin: but goods delivered to a carrier and unjustly detained are not repleviable; for the unjustdetgatipn of goods delivered on a contract is not an injury to which the action of~replevin_agplies, but forms the ground of arfactionordetinue or trover. Replevisor: plaintiff in replevin. The word has been said to mean, originally, a redelivery of the pledge or thing taken upon a distress, to the owner, by the court, upon the owner giving security to try the right of the distress, and to restore the subject-matter, if the right be adjudged against him. Wharton. Or perhaps a redelivery upon his pledge thus to prosecute. Burritl. But the action in modern practice is not confined to goods taken in distress, but may be brought generally for goods and chattels unlawfully taken. Upon receiving a writ or plaint in replevin, it is the sheriff's duty to take possession of the property, and deliver it to the plaintiff upon the latter's giving satisfactory security to prosecute his suit and establish his title to the goods; or that, if judgment passes against his claim, he will return them. After this, of his goods, subject to the obligation to return them. The course of proceedings is modified, in almost all the jurisdictions, by modern statutes; and no one account of it can be given which is everywhere applicable. A sketch of the action, as employed in England at the present day is given below. Being a common-law form of action, the terms have no place or use in equity or admiralty jurisprudence. Under codes of reformed procedure, replevin does not exist as a distinct action, but is replaced by the provisional remedy, " claim and delivery," allowed as ancillary to a civil action to try the title to the goods. But, for want of other nomenclature, these words are often used, in reports under the codes, as if they were pr'ecisely applicable to actions commenced by claim and delivery. Replevin is of two sorts: in the detinet; in the detinuit. Where the party has had his goods redelivered to him, the action is in the detinuit, " wherefore he detained the goods," &c.; but where replevin has not been made, but the distrainor still keeps possession, the action is in the detinet, " wherefore he detains the goods," &c. The action in the detinet has long fallen Into disuse, and is never brought unless the distrainor has eloigned the goods, so that they cannot be got at to make replevin. Wharton, The registrar of the county court now grants the replevin, approves of the replevin bonds, and issues all necessary process in relation thereto, which Is executed by the high bailiS of the county court. The replevin is granted at the instance of the party whose goods are distrained, who is called the replevisor, who must give security for prosectiting the action. The security must he of sufficient amount to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause; and to make a return of the goods, if a return shall be adjudged. The action, if intended to be commenced in a county court, must, according to the condition of the bond, be commenced within a month; if in a superior court, then within a week. In the latter case, the replevisor further undertakes to prove before the court in which the action is brought that he had good ground for believing that the title to some corporeal or incorporeal hereditament, or to some toll, fair, market, or franchise was in question, or that the rent or damage exceeded £20; in other words, that the facts were such as to exclude the jurisdiction of the county court. When the action is brought, the defendant general terms the taking of the goods. If the defendant insists that the goods were lawfully taken by him in his own right, the pleading is called an avowry; if in the right of another, it is called a cognizance. He may claim also a return of the goods; so that both parties are regarded as actors, or claimants seeking redress. The plaintiff's next pleading is called a plea in bar, and that of the defendant a replication, and so on. The judgment, if for the plaintiff, awards damages for the unlawful taking; if for the defendant, it is that he have a return of the goods taken; and, if the distress was for rent, he recovers the amount of arrears in damages. If the action be in the county court, it is tried in the same way as other actions in county courts. ( Termes de la Ley; Cowel; 3 Bl. Com. 145-151; 3 Steph. Com. 420-423; Lush Prac. 1013-1026; Fawcett L. Sr T. 176-178.) Mozley #• W.