CHAPTER XXIV. REPLEVIN. 3555. History and origin of the action. 3558. Service and return of the writ. 3563. The injury. 3564-3579. The pleadings. 3565-3570. The declaration. 3565. The venue. 3566. The detinet and detinuit. 3567. Statement of the plaintiff's title. 3571-3578. Pleas. 3572. Pleas in abatement. 3573. The general issue. 3574-3578. Special pleas. 3575. Avowries and cognizances. 3576. Pleas denying the plaintiff's property. 3577. Pleas in justification. 3578. Pleas in excuse and discharge. 3579. Replications and subsequent pleadings. 3580. The evidence. 3581-3583. The judgment. 3582. Judgment for the plaintiff. 3583. Judgment for the defendant. 3584. The writ of second deliverance. 3555. Replevin is the name of an action brought for the recovery in specie of a personal chattel which has been unlawfully taken and detained from the owner's possession, together with damages for the detention.' The invention of this action is ascribed to Glanvil, chief justice under Henry II. In its origin it was confined to the single instance of taking a distress, and this circumstance probably gave to this action its character of locality, though its remedial operation has since been extended, and it has now become 1 Hammond, Nisi P. 372; Replevin, or replevy, in Latin replegiare, signifies to take back the pledge. This was so called, because, at common law, a person distrained upon applied to the sheriff or his officers, and by their means had 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 should be determined against him, to return the chattel and goods into the hands of the distrainor. 3 Blackstone, Comm. 13; Coke, Litt. 145, b. * Mirrour, c. 2, s. 6; Glanville, lib. 4, c. 5, Beames' Translation, p. 87. the appropriate form of suit for every dispossession or personalty, whether the seizure was made in the name of a distress, or otherwise. There were, at common law, two actions for the recovery of specific personal property, detinue and replevin. The former was limited to cases where the taking was lawful, but the detention unlawful, or to cases where the plaintiff waived the unlawful taking by bringing the action. The latter applied only to cases where the original taking was tortious as well as the detention. In modern practice this action is regulated almost entirely by statutes, and is of different extent in the different states. In a few it is limited to a few specified cases of unlawful taking;3 in most of the states it applies to all cases of unlawful taking; and in many, no distinction is made between detinue and replevin, but the same form of action, designated either as replevin or as an action to recover personal property, is used for the purpose of recovering any specific personal property held under a claim of adverse title, whether the taking be lawful or unlawful.5 4 3556. At common law the first proceeding was the issuing of the writ, but in some states it is requisite that this should be preceded by other steps. Under the codes which follow the New York practice, an affidavit must be made that the plaintiff is the owner of the property sought to be replevied, or the action is commenced by filing a declaration, petition, or complaint under oath." This proceeding is, however, an innovation. Either before the issuing of the writ or before it is served the plaintiff in replevin is required to give a bond. The value of the property is fixed by agreement or by appraisal under the statutes, and the bond is conditioned to return the property or its value if the plaintiff does not prevail in the suit. The bond stands in the place of the property, and it is incumbent on the sheriff to see that the security is good before he delivers the property to the plaintiff, for he is responsible at common law for the sufficiency of the sureties. If no bond is given, the suit will be dismissed. 3557. The writ commands the sheriff that, justly and without delay, he cause to be replevied the cattle or goods claimed, which should be particularly specified and described, for a want of such specification or description will render the writ voidable, and it may be quashed; and when it does not include all the property, the defect cannot be cured by enlarging the description in the declaration. It should be made returnable at the next term of the court, and not permit a term to intervene before the return day.10 But the time and manner of issuing this writ are regulated by the provisions of the statutes of the several states, which must of course be observed." In Connecticut, Virginia, Georgia, and Alabama it lies only in cases of attachment or distress. Watson v. Watson, 9 Conn. 140; in Mississippi only for distress, Wheelock v. Cozzens, 7 Miss. 279. * Harwood v. Smethurst, 5 Dutch. N. J. 195; Dame v. Dame, 43 N. H. 37. It is limited to unlawful taking in New Jersey, Illinois, and South Carolina. This is the case in Arkansas, California, Delaware, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, and Wisconsin. "See Newell v. Newell, 34 Miss. 385; Stephens v. Scott, 13 Ind. 515; Hoover v. Rhoads, 6 Iowa, 505; Whister v. Roberts, 19 Ill. 274. Pearce v. Humphreys, 14 Serg. & R. Penn. 23; Oxley v. Commonwealth, 1 Dall. 349. 8 Snedecker v. Quick, 6 Halst. N. J. 179; Magee v. Siggerson, 4 Black f. Ind. 70. 537. Sanderson v. Marks, 1 Harr. & G. Md. 252; but see Finehout v. Crane, 4 Hill, N. Y. 10 Gayward v. Doolittle, 6 Cow. N. Y. 602. 11 In some of the states, before issuing the writ, the plaintiff must make affidavit of the truth of the facts which authorize its issue. 2 Rev. Stat. of New York, 523, 7; Millikin 401 VOL. II.-3 A 3558. By virtue of the writ the sheriff proceeds to take possession of the property described therein, and delivers it to the plaintiff. In Pennsylvania and Delaware, if the defendant claims property in the goods described in the writ, he has a right to retain them by giving a property bond, the condition of which is that he will return the goods if, upon trial, they shall be adjudged to belong to the plaintiff. In such case the sheriff makes a return according to the facts, and when he replevies the goods and delivers them to the plaintiff, as well as when the defendant claims property, he returns that he has summoned him to appear in court. In New York and Arkansas, also, similar provisions exist for the redelivery of the property to the defendant, but in the other states it is at once delivered to the plaintiff. 3559. If the officer cannot find the goods, he returns elongata or eloigned, that the goods have been removed out of his jurisdiction. Upon this return, at common law, the plaintiff may sue out a capias in withernam, by which the sheriff is commanded to take the defendant's own goods which may be found in his bailiwick, and keep them safely and deliver them to the plaintiff, until such time as the defendant chooses to submit himself, and allow the distress and the whole of it to be replevied; and he is thereby further commanded that he do return to the court in what manner he shall have executed the writ. This and various other proceedings in English practice are but little known or used in the United States, the action of replevin being regulated by statutes. 3560. Replevin lies in general for any specific personal property capable of separation and identification, and which possesses indicia or earmarks by which it may be distinguished from all other property of the same description. Though replevin does not lie for money as such, yet it may be maintained for money in a bag, and taken from the plaintiff in that state. It does not lie for an undivided share of property. It lies for promissory notes.15 14 Chattels, real, cannot be recovered in replevin, and such at common law were title deeds. But it seems that now title deeds can properly be recovered in this action.16 But Articles properly belonging to the realty, but tortiously severed therefrom, may be recovered; as, wood and timber cut down in waste of the premises.18 replevin does not lie where, as part of the same act, one disseises the owner of land, and cuts and removes the crops. 19 3561. As the principal object of this action is to obtain the possession of the chattel, the plaintiff must have the right of possession in order to maintain it. The right of possession may arise from a general or special property in the chattel. The general owner may maintain this action, though he never had possession, because the ownership draws to it the right of possession in the absence of other claims. There are some cases where the general owner has not the right of possession v. Selye, 6 Hill, N. Y. 623. In Illinois the plaintiff, or some one for him, must make affidavit that "the plaintiff in such action is the owner of the property," etc. Frink v. Flanagan, 6 Ill. 35. 12 Fisher v. Whoolery, 25 Penn. St. 197. 13 Wilson v. Duchet, 2 Mod. 61. 14 Low v. Martin, 11 Ill. 286. 15 Graff v. Shannon, 7 Iowa, 508. 16 Wilson v. Rybolt, 17 Ind. 391. 17 Congregational Society v. Fleming, 11 Iowa, 533; Laflin v. Griffiths, 35 Barb. N. Y. 58. 18 Waterman v. Matteson, 4 R. I. 539. 19 De Mott v. Hagerman, 8 Cow. N. Y. 220. against the holder, and in this case the writ does not lie; as, where the goods are in the possession of a factor who has a lien for advances.20 In general, any one having the right of possession may replevy the chattel," and the judgment depends upon the facts existing and the rights vested at the commencement of the action. A mortgagee not in possession, but with a right to possession at any time at his discretion, may maintain the suit.23 22 Mere possession on the part of the plaintiff, coupled with a right against every one except third parties, with whom the defendant has no privity, is sufficient to support the action.24 3562. If the property is held jointly by several parties, they must all join in the action, and one of several tenants in common or joint owners cannot recover possession of the chattel in replevin. This has been held where the chattel is taken on attachment or execution against one part owner. The other part owner may have a remedy in trespass or case, but he cannot in such event recover in replevin.25 And a fortiori one tenant in common cannot maintain replevin against his co-tenant, because they are equally entitled to the possession.26 3563. Originally, this action was confined to cases of unlawful distress, but is now generally extended to all cases of unlawful taking. It is the appropriate remedy for the owner of chattels which have been taken on attachment or execution as being the property of another. But the action does not lie in favor of the defendant against whom the attachment or execution runs.28 In some states, the action to recover personal property, which takes the place of replevin, lies against the sheriff to recover property which is by statute exempt from execution.29 Property in possession of a sheriff, by virtue of a writ of replevin, cannot be taken from him by another writ of replevin.30 In those states where this remedy is used to recover property unlawfully detained, if the original taking by the defendant was lawful, the detainer does not become unlawful until demand and refusal, or other acts sufficient to constitute a conversion.31 3564. The pleadings in replevin differ from the pleadings in every other action; they consist of the declaration, the pleas, the replications, and subsequent pleadings. 32 20 Wood v. Orser, 25 N. Y. 348; see Bassett v. Armstrong, 6 Mich. 397. 21 Moorman v. Quick, 20 Ind. 67; District No. 5 v. Lord, 44 Me. 374. 22 Currier v. Ford, 26 Ill. 488; Alden v. Carver, 13 Iowa, 253; Loomis v. Youle, 1 Minn. 175; Belden v. Laing, 8 Mich. 500. 23 Frisbee v. Langworthy, 11 Wisc. 375. 24 Johnson v. Carnley, 10 N. Y. 570. 25 Kimball v. Thompson, 4 Cush. Mass. 441; Reinheimer v. Hemingway, 35 Penn. St. 432. 26 Barnes v. Bartlett, 15 Pick. Mass. 71; Prentice v. Ladd, 12 Conn. 331; Azel v. Betz, 2 E. D. Smith, N. Y. 188; Noble v. Epperly, 6 Ind. 414. 27 Lewis v. Buck, 7 Minn. 104; Gimble v. Ackley, 12 Iowa, 27; Bassett v. Armstrong, 6 Mich. 397; Rodman v. Kelly, 13 Ind. 377. 28 Perry v. Richardson, 9 Gray, Mass. 216; Musgrave v. Hall, 40 Me. 498; Lamprey, 20 N. H. 403; Deshler v. Dodge, 16 How. 622. Melcher v. 29 Wilson v. Stripe, 4 Greene, Iowa, 551; Elliot v. Whitmore, 5 Mich. 532. 30 Sanborn v. Leavitt, 43 N. H. 473; Dearmon v. Blackburn, 1 Sneed, Tenn. 390. 81 Conner v. Comstock, 17 Ind. 90; Stanchfield v. Palmer, 4 Greene, Iowa, 23; Stratton v. Allen, 7 Minn. 502; Newman v. Jenne, 47 Me. 520; Newell v. Newell. 34 Miss. 585. 32 In the action of replevin, the names of the pleadings differ from the names in other actions. When the defendant pleads some matter confessing the taking, but showing a lawful title or excuse, such pleading is not (as it would be in other actions) called a plea in bar, but an avowry or a cognizance. The answer to the avowry or cognizance is called a plea in bar; then follows the replication, rejoinder, etc., the ordinary name of each pleading being thus postponed by one step. 3565. The venue in replevin, at common law, is local; the declaration must, therefore, disclose the place where the chattel was taken, and the jury should come from the county in which the cause of action is alleged to have arisen; it ought to state a place certain, within the village or town; but in Pennsylvania, it has been held sufficient to allege the taking to be within the county; the omission in this respect is cured by verdict.35 33 34 In many of the states the action is now transitory, and in these it is ally sufficient, and, in fact, proper to allege the taking in the county, and it is often not requisite to allege any place of taking.36 3566. The declaration is of two descriptions; the plaintiff either declares that the chattels taken are "yet detained," which is termed "counting in the detinet;" or he affirms that they "were detained until replevied by the sheriff," which is expressed shortly thus, "detained until," etc., which is called declaring in the detinuit. 37 When the chattels taken are in their nature distinguishable from all others of a similar kind, the same particularity in describing them which is sufficient in an action of trover will also be sufficient in replevin. But if they do not possess the property of being distinguishable from all others of the same kind or sort, it must be shown in the declaration what indicia or earmarks are peculiar to them. It is to be remarked that when the replevin is in the detinuit, the plaintiff should not count for more nor less than the identical chattels replevied; for when he declares for a greater number, the defendant will be entitled, if he avows for the whole and succeeds, to have judgment de retorno habendo, for the entire number; and in case he declares for less than the quantity or number replevied, the defendant will, quoad the number omitted, be entitled to the same judgment, notwithstanding he had no right to take them.38 When the replevin is in the detinet, the value of the chattels must be stated in the declaration and proved on the trial, because if the plaintiff succeeds, the judgment must be that he recover the goods or their value; on the contrary, if the replevin is in the detinuit, the value need not be shown, because in this case the plaintiff has the goods already, and, of course, he cannot recover their value, but only damages for the unlawful taking.39 3567. It must appear by the declaration that the plaintiff is proprietor of the chattels; and an allegation that they are his goods is a sufficient averment of his title; but the allegation that he is entitled to the possession is insufficient; it is necessary he should show a general or special property in them. The declaration should also show that the goods were in his possession at the time they were taken." 3568. Formerly, it was presumed that this action was instituted to decide the title to real property; it was then necessary that the defendant should be informed to what spot in particular the plaintiff intended to assert his claim, in order that the defendant might have an opportunity of contesting its validity. For this purpose the plaintiff was obliged to name in the writ the place 33 Gardner v. Humphreys, 10 Johns. N. Y. 53. 34 Mock v. Folk rod, 1 Browne, Penn. 60. 38 See Root v. Woodruff, 6 Hill, N. Y. 418. 37 Potter v. North, 1 Saund. 347, b, n. (2). 39 Potter v. North, 1 Saund. 347, b, n. (2); Fitzherbert, Nat. Brev. 69 (L); Buller, Nisi P. 52. 40 Pattison v. Adams, 7 Hill, N. Y. 126; Rowland v. Mann, 6 Ired. No. C. 38; Heath v. Conway, 1 Bibb, Ky. 398; Smith v. Hancock, 4 Bibb, Ky. 222; Loomis v. Youle, 1 Minn. 175; but see Cassell v. Western Co., 12 Iowa, 47. 41 Bond v. Mitchell, 3 Barb. N. Y. 304; Redman v. Hendricks, 1 Sandf. N. Y. 32. |