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DECLARATION IN DwnNus 14
IN THE EXCHEQUER OF PLEAS.
The 15th day of June, in the year of our Lord 1845.
Berkshire, to wit.—Anthony Brown (the plaintiff in this suit), by Peter Black, his
13. “The reason 0f this may perhaps be found partly in the perishable character of medieval movables, and the consequent feeling that the court could not accept the task of restoring them to their owners, and partly in the idea that all things had a ‘legal price’ which, if the plaintiff gets, is enough for him.” Maitland, The Forms of Action at Common Law, Lecture V, 02 (Cambridge 1948).
14. One of the major defects in the Action of Detinue consisted of the fact that its judgment was condi­tIonal or in the alternative. Thus, it provided that the plaintiff should recover of the defendant the specific chattels sued for, or if they were not avail­able, their value plus damages for the wrongful de­tention, See Kirkland v. FIlcher, 174 Ala. 170, 57 So, 48 (1911). This defect was remedied by Section

78 of the Common Law Procedure Act of 1854, which empowered a court or judge, upon applica­

attorney, complains of Augustus White (the defendant in this suit), who has been sum­moned to answer the said plaintiff in an ac­tion of Detinue. For that whereas the said plaintiff heretofore and before the com­mencement of this suit, to wit, on the 12th day of February, in the year of our Lord 1845, had delivered to the said defendant cer­tain goods and chattels, to wit, twenty pipes of wine of the said plaintiff, of great value, to wit of the value of £2,000, to be redelivered by the said defendant to the said plaintiff when the said defendant should be thereunto afterwards requested: yet the said defend­ant, although he was afterwards, to wit, on the first day of March, in the year aforesaid, requested by the said plaintiff so to do, hath not as yet delivered the said goods and chat­tels, or any of them, or any part thereof, to the said plaintiff, but so to do hath hitherto wholly refused, and still refuses, and still unjustly detains the same from the said plaintiff, to the damage of the said plaintiff of £800, and thereupon he brings his suit,~

MARTIN, Civil Procedure at Law, 371 (St. Paul, 1905).

JUDGMENT IN DETINUE’5

Common


THEREFORE it is considered that the plaintiff do recover against the defendant the said goods and chattels (or “deeds and pa­per” etc. or enumerating them, if enumerat­ed in the postea,) or the said sum of
tion of the plaintiff, to order the return of the spe­cific chattel in question, thus depriving the defend’ ant of his option of retaining the chattel upon pay­ment of the value assessed, Cf. Tierney V. Corbett, 2 Mackey S.C.D.C. 264 (1883).
15. An examination of the form of the judgment in detinue will indicate that Itis couched in alterna’ tire language to cover the possibility of the defend­ant hating disposed of the chattel before the judg’

meat was rendered.


Tinder ~ 7108 of the New York Clvii Practice Law and ltiles (1908), the plaintiff may in certain circum­stances have either the chattel or the value there-

of. See also, Dame v. Dame, 43 NJ!. 37 (1861).

Sec. 123


ACTION OF DETINUE

249


£ , for the value of the same, if the plaintiff cannot have again his said goods and chattels, (or “deeds” etc.) and also his said damages, costs and charges to £_______ beyond the value, aforesaid, by the jurors aforesaid in form aforesaid assessed, and also £______ for his said costs and charges by the court here adjudged of increase to the plaintiff, and with his assent, and the defend­ant in mercy, etc. And hereupon the sheriff is commanded that he distrain the defendant by all his lands and chattels in his bailiwick, so that neither the defendant, nor any one by him, do lay hands on the same until the said sheriff shall have another command from the court here in that behalf, and that the said sheriff answer for the issues of the same, so that the defendant render to the plaintiff the goods and chattels (or “deeds” etc.) aforesaid, or the said sum of ~

for value of the same; and in what manner, etc., he is commanded to make appear, etc.


TIDD, Forms of Practice, 340 (London 1828).

DECLARATION IN DETINUE—ESSENTIAL



ALLEGATIONS: (1) IN GENERAL
122. The Essential Allegations of the Dee­laration in an Action of Detinue are:

(I) The Right of the plaintiff to Certain Goods and Chattels of a certain value, described;



(II) The Unlawful Detention;

(III) The Damages.

DECLARATION IN DETINIJE—ESSENTIAL

ALLEGATIONS: (2) TILE PLAINTIFF’S

RIGHT, TITLE, INTEREST OF POSSES­

SION:

123. The Declaration must describe the thing detained sufficiently for purposes of iden­t’tfication and assert the plaintiff’s Title and Right of Possession.
The plaintiff’s Right may arise from General Ownership, or some Special Interest, or as against a wrongdoer, from Bare Possession.

Description of the Property

AS the Action of Detinue lies only to re­cover specific chattels, known and distin­guished from all others, more Certainty is required in the Declaration in their descrip­tion than in Trespass or Trover; and it must be such as to particularly identify them as the goods in question.’6 This particularity, however, need not extend to every matter of



detail, and need only include enough to iden­tify them, either as individual articles or as a number of things belonging to a particular class, according to the circumstances of each particular case.”
There were anciently Two Modes of Count­ing in Detinue. The plaintiff must say

either, “I bailed the chattel to you,” or “I lost the goods and you found them” (detinue stir tro-ver). Only in times much later did the lawyers say that these phrases about finding (Trover) and bailment, though one of them must be used, are not “Traversable,” and that defendant must not deny them, but must deny the wrongful detention.’8


The Plaintiff’s Right

The plaintiff must have either a General or Special Property in the chattels, or he must have a Right to the immediate Pos­session of them.’° That he has this right


16. Taylor v. Wells, 2 Saund. 74a, fl4b, 85 Eng.Rep.
743 at 744 (1845); Haynes v. Crutehfield, 7 Ala. 189 (1544).
11, An allegation of the value of the property seems

necessary. Indiana: Hawkins v. Johnson, 3 Blackf. (Ind.) 443 (1832). And see Robinson v. Woodford, 87 W.Va. 377, 10 SE. 602 (1592).

18. 1 Saunders, The Law of Pleading and Evidence In civil Actions, Detlnue, 531, 582 [*434,435] (Phila­delphia 1829); 2 Pofloek and Maitland, History of English Law, 0k. II, c. Iv, 170 (Cambridge 1895); 1 Chitty, Treatise on Pleading and Parties to Ac­tions with Precedents and Forms, 121, 124 (London 1808; 16th Am. ed. by Perkins, Springfield 1576).
IL See Ames, Lectures on Legal History, c. VI, Detlnue, 71 (CambrIdge 1913); Whltehead v. Harri­son, 0 Q.B. (KS.) 423, 115 Eng.Rep. 102 (1884); Hef­ner v. Fidler, 58 W.Va. 159, 52 SE. 513, 3 L.R.A.

Sec. 126


ACTION OF DETINUE

251


does it lie against a bailee who has lost the chattel by accident before demand; 25 but if he has wrongfully and elusively sold and de­livered, or otherwise disposed of, the chattel to another, he remains liable.20 If a person, by representing that he has the chattel, in­duces the owner to bring the action against him, he will be estopped to deny possession of it by him.2

DECLARATION IN DETINUE—ESSENTIAL

ALLEGATIONS: (4) THE DAMAGES

125. As the Judgment in this Action is in the Alternative, that the plaintiff recover the goods, or the value thereof, if the specific goods cannot be had, Damages should be laid suffi­dent to cover both such value and the actual loss caused by the detention.


THE Allegation of Damages in the Decla­ration in this Action is always necessary, as the Judgment is that the plaintiff recover the Specific Chattel, or, in case it is not forth­coming, its Value; and a sum should be laid which will be large enough to cover both this

Value and any Actual Damage which the plaintiff has suffered by the fact of the de­


85. 1 chitty, Treatise on Pleading and Parties to Ac­tions with Precedents and Forms, 188 (London 1808. 16th Am. ed. by Perkins, Springfield 1876); Broolce, Abridgment, Detinue de Biens, pls. 1, 33, 40 (London 15 13).
26. English: Jones v, Dowle, 9 it]. & W. 19, 152 Eng. Rep. 9 (1841); Reeve v. Palmer, 5 CE- (N.S-) 84, 141 Eng.Rep. 23 (1858); Wilkinson v. Verity, Lit. 6 CF. 206 (1871); Devereux v. Barclay, 2 Barn. & AId. 703, 106 Eng.Rep. 521 (1819); Mertens v. Adcoek, 4 Esp.

251, 170 Eng.flep. 709 (1804); Bank or New South \Vales v. O’connor, 14 App.Cas. 273 (1889); Ala­bama: Walk-er y. Penner, 20 Ala. 192 (1852); Ken. tucky: Rueker v, Hamilton, 3 Dana (Ky.) 36 (1835);

Mississippi: Lowry v. Houston, 3 How. (Miss.) 394 (1839); New R:ampshire: Dame v. Dame, 43 N.H. 37 (15131); North Carolina: Merrit v. Warmouth, 2 NC. 12 (1896); South Carolina: Kershaws Ext’s v. Boykin, 1 Brew. (S.C.) 301 (1803); Tennessee: Ha­ley v. iowan, 5 Yerg. (Tenn.) 301, 26 Am.Dec. 268 (1833); Robb v. Cherry, 98 Toni. 72, 38 SW. 412 (1896); West Virginia: Burns v. Morrison, 36 W. Va. 423, 15 8.E. 62 (1892)
- Dyer v. Pearson, 3 Barn. & 0. 38, 107 Eng,fiep. 648 (1824).

tention.28 The Measure of Damages, if the goods cannot be had, is their Value at the time of the Verdict, with the addition of



such Special Damage as the plaintiff may have sustained by the wrongful act of the defendant.2°
STATUS UNDER MODERN CODES, PRACTICE ACTS AND RULES

OF COURT

126. An action to recover possession of a chattel, or its value in case delivery cannot be had, may be maintained under many Modem Codes and Practice Acts under the same cir­cumstances as an Action of Detinue would be maintainable at Common Law.



IN the California case of Faulkner v. First National Bank of Santa Barbara,3° decided in the year 1900, under the statutory provi­sions concerning the Claim and Delivery of Personal Property, the plaintiff averred that she had deposited certain promissory notes as collateral security for a promissory note made to plaintiff by another; that she de­manded that defendant deliver the notes to her; and that such demand was refused, and that the defendant still unlawfully withholds and detains the same, to the damage of the plaintiff in a certain sum. The prayer was for the recovery of the notes, or for the sum of forty-six hundred dollars, the value there­

of. After a Verdict and Judgment for the plaintiff, the defendant Appealed, bringing up the Judgment Roll, which included a Bill of Exceptions. In affirming the Judgment, McFarland, J., declared: “The Cause of Ac­tion in the Case at Bar is based on a contract of bailment. The original taking was not unlawful, but the detention was. Now, that is just the kind of wrong for which at Common Law the Action of Detinue was


28. See Arthur v. Ingels, 34 W.Va. 639, 12 sE. 872,

11 L.R.A. 557 (1891).


29. See White v. Sheffield & T. St. fly. Co., 90 Ala.

253, 7 So. 910 (1890); Grand Island Banking Co. v.

First Nat. flank of Grand Island, 34 NeIJ 93, 51 N.

W. 596 (1892).


30. 130 Cal. 258, 62 P. 463 (1900).

252


OFFENSIVE PLEADINGS

Oh. it


especially appropriate, and the averments in the Complaint in the case at Ear are substan­tially those required in such action. 3 El. Comm. 151; the form of declaration on page 38, Steph.Pl., 9th Am,Ed., by I-Turd; Rucker v. Hamilton, 3 Dana, 36. While we have no Forms of Action here, yet when the Aver­ments of facts in a Complaint show the case to be one for which a particular Form of Ac­tion would have been a proper one at Com­mon Law, then the general principles of pleading and practice apply to it which apply to the Special Form of Common-law Action, Now, it was no Defense to the Action of Det­inue to plead that the defendant, before the Commencement of the Action, had wrongful­ly disposed of the property, and therefore was not in possession of it. * * [The

court cited several American cases and Reeve v. Palmer, 5 C.B., N.S., 8411. The principles declared in the foregoing authorities are emi­nently just, and are founded on the maxim that no one can take advantage of his o~wi wrong; and they are as applicable now to an action based on a contract of bailment as they were to such an action when it had to be brought under the Special Form of Deti­nue. The usual Judgment in such Action is in the Alternative,—that is, that the plain­tiff recover possession of the property, or its value in case delivery cannot be had; but where it appears that the property cannot be delivered the defendant is in no way prej­udiced by a Judgment for the value only, and the fact that the Judgment is not in the Alternative is no ground for reversal.”

Sec.

CHAPTER 12



THE ACTION OF REPLEVIN1

127. Scope of the Action.

128. Replevin—Distinguished From and Concurrent with Other Actions.

129. Forms of Original Writ, Plaint, Declaration and Bond in Repievin.

180. Declaration in Replevin—EssentIal Allegations:

(1) In General.

131. Declaration in Replevin—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession.

132. Declaration in Replevin—Essential Allegations:

(8) The Wrongful Act of Taking and Detention by the Defendant.

133. Declaration in Replevin—Essential Allegations:

(4) The Damages.

134. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF TILE ACTION

127. The Action of Replevin lies, where Specific Personal Property has been wrong­fully taken and is wrongfully detained, to re­cover Possession of the Property, together with Damages for its detention. To support the Ac­tion, it is necessary:

That the Property shall be Personal;



That the plaintiff, at the time of the Suit, shall be entitled to the Im­mediate Possession;

(III) That (at Common Law) the def end-

ant shall have wrongfully taken the property (Replevin in the Cepit). But, by Statute, in most States, the Action will also Lie where the property is wrongfully detained, though it was lawfully obtained, the first instance (Re-

plevin in the Detinet);

(W) That the property shall be wrongful­ly detained by the defendant at the time of the Suit.
The Primary and Secondary Objectives of .Replevin

THE Primary object of Replevin is to en­able the plaintiff to obtain possession of the


1. In general, on the historicaj origin and develop’ mont of the Action of Beplevin, see:
Tm tins: Gilbert, The Law and Practice of Distress­es and Replevies (3d ed. by Hunt, DublIn 1702);

goods at the outset, without waiting until he has established his Right by Action. Like Detinue, the Action is primarily to recover


Wilkinson, The Practice in the Action of Replovin; With a Collection of Practical Forms (London 18251; Bradby, A Treatise on the Law of Distresses (24 ed. by Adams, London 1828); Longfield, The Law of Distress and Bepievin in Ireiand (Dublin 1841); Morris, A Treatise on the Law of Replevin in the United States (3d eu. Philadelphia 1878); Bigelow, History of Procedure in England, c. XVI, Summons, 219, Distraint (Boston 1880); OluThain, The Law of Distress (24 ed., London 1889); 2 Polloek and Malt-land, History of English Law, c. IX, Procedure, 2, Self-Ee]p, 375 Reple-rin (cambridge 1895); C-oljbey, Law of Reples-iu as Administered by the Courts of the United States (2d ed., Chicago 1900); Martin, Civil Procedure at Common Law, c. III, Iteplevin, Art. V, ~ 105-115, 92—101 (St. Paul 1005); 3 Street, Foundations of Legal Liability, c. XVI, Action of Replevln, 207—222 (Northport 1906); Id. c. XX, The Remedy of Distress, 278; Ames, Lectures on Legal History, Lecture V, Replevin, 64—71 (Cambridge 1913); Shipman, Handbook of Common-Law Plead­ing, e. VI. The Action of Replevin, ~ 50, 51, 108, 109, 110, 111 (34 ed. by flallantine, St. Paul 1023) 3Ioi-gas, The Study of Law, c. V, Replevin, 88—92 (2d ed., Chicago 194s); Potter, Historical Introduction t~ Engiisb Law, c. IV, § 4, fleplevin, 391—393 (3d ed., London 1948); Walsh, A History of Anglo-American Law, Bk. LI, c. VI, § 55, Trespass de Bonis Asporta­tis and Replevin, 113—115 (2d ed., Indianapolis 1932).
Articles: Maitland, The Selsin of Chattels, I LQ. Rev. 324 (1885); Ames, The Disseisin of Chattels. 8 Harv.L.Rev. 23 (1889); Barewen, Property in Chat-

(I)

(II)

253


254

OFFENSIVE PLEADINGS

Ch. 12


the goods in specie; but the Action differs from Detinue in that the plaintiff does not have to wait, as in Detinue, until the Action is determined, before he can obtain posses­sion. The Secondary object of the Action of

Replevin is to recover the value of the goods, if for any reason the primary object is de­feated, and, in all cases, to recover Damages to compensate for the loss of the use of the property while it was detained by the defend­ant.2
Replevin in the Nature of a Prou isional Rem­edy

REPLEVIN may be described as an Action for the recovery of possession, in which the


this, 29 Harv.L.Rev. 374 (1910); SquIre, General Denial in Iteplevin, 24 Case & Comment 21 (1917— 18); Finkelatein, The Plea of Property in a Stran­ger in Replevin, 23 CoI.L.Rev, 652 (1923).
Comments: Replevin of Goods Taken in Execution— Error in the Looks, 12 Am.Jr. 104 (1834); Repievin

—Property in a Third Party, 20 Col.L.Rev. 622 (1920); The Early Development of the Doctrine of Ins Tertii in Replevin, 34 Yale L.J. 72 (1924); Re­plevin—Dcfenses of Paramount Right to Possession in a Third Person, 27 Mich.LJtev. 936 (1929); Pro­eedure—Contempt as Sanction to Enforce Delivery in Replevin, 48 Mich.L.Rev. 377 (1950).


Annotations: Alternative Judgment in Replovin as Giving Option to Either Party in Regard to Pay­ment of Damages or Return of Property, 170 ALE. 122 (1947); Sufficiency of Proof in Replevin of De­fendant’s Possession at Time of Commencement of Action, 2 A,L.R2d 1043 (1948).
Le~lsJatlon: Action of 1teplevin, Act to Abolish, 2 N.Y.L.J. 165 (1879).
Replevin, like Debt and its offshoot, Detinue, was sub­ject to Wager of Law. Bracton’s Notebook, 477, 741

(London 1887); 2 Pollock and Maitland, History of

English Law, c. IX, Procedure, § 4, Pleading and

Proof, 631, 032, Wager of Law (Cambridge 1895).


2. Cobbey, Law of Iteplevin As Administered by the

Courts of the United States, c. IT, Scope and Nature

of the Action, ii 23, 24 (2nd ed. Chicago 1900);

English: Mennie v. Blake, 6 LI. & Dl. 842, 119 Eng.

Rep. 1078 (1856): California: Fredericks v. Tracy,

98 Cal. 058, 33 Pae. 750 (1893); Delaware: Atlantic

Refining Co. v. Feinberg, 112 AtI. 685 (Del.Super.

1920); New Jersey: Pedrick V. Kuemmell, 14 N.J.L.

379, 65 AtI. 846 (1907); Oklahoma: Leeper, Graves

& Co. v. First Nat. Bank of Hobart, 26 OkIa. 707,

110 Pac. 655, 29 LEA. (N.S.) 747, Ann.Cas.1912B,

302 (1912). -

“provisional remedy” of an immediate deliv­ery of the chattel claimed is granted. The Action has to a large extent, as we shall see, displaced Detinue, and is now the common remedy to recover possession of a chattel and Damages for its wrongful detention, or, in case the thing itself cannot be recovered, Damages for its value as well as for its de­tention.


The Action, therefore, is not founded merely upon the right to obtain redress for a tort; in Replevin and Detinue, recovery of specific property is the end and aim of the Action. In present-day Law, the Action ef Replevin differs from Detinue chiefly by the circumstance that the plaintiff at once se­cures possession of the chattels in dispute. This immediate relief is in the nature of a provisional remedy, granting the plaintiff a recovery of the chattels pending the outcome of the action. By this provisional relief the plaintiff really accomplishes his object to get possession of his goods; to retain possession, however, he must prosecute his action and establish his right. Hence, as a condition of securing this relief in advance and having the Sheriff deliver the property—the horse and plough—over to him, he was and is re­quired to give security in the form of a bond or undertaking, with sureties, to make out the justice of the claim or return the prop­erty to the defendant.
Does Replevin Lie for AU Unlawfv1 Takings?

AT Common Law Replevin lay only for an unlawful taking of goods. But for several



hundred years it was employed chiefly for

only one sort of unlawful taking, that of a wrongful distress.3 The Writ of Replevin, as shown by the Form in the Register, mere-


3- “A distress is the taking of a personal chattel without legal process from the possession of a wrongdoer into the hands of the party aggrieved. as a pledge for the redress of an injury, the per­formance of a duty, or the satisfaction of a dc­mand.” Bradby, on Distress, c. VIII, Of a Distress

ly alleged an unlawful taking and withhold­ing by the defendant—cepit et injuste deti­net, or taken and unjustly detained—and there is no suggestion in the early Law which in theory limits Replevin to the field of dis­tress, and this view is supported by the fact that the Writ and Pleadings, which is always

good evidence of the Law, contains no lan­guage restricting the action to a wrongful dis­tress.4
As thus developed, an Action of Replevin was the regular way for the plaintiff-tenant to contest the validity, of the extra-judicial seizure by which his lanälord had taken his goods upon a distress for rent. It consisted in a redelivery of the pledge, or thing taken in distress—the horse and plough,—to the owner, upon his giving security or bond to try the right of distress and to restore it if the right should be adjudged against him.6
The theory of the action, as we have ob­served, was broad enough to cover any case

of wrongful taking, and the statement of Blackstone that it was only available in cases of wrongful distress was soon shown to be incorrect.6 It is now clearly recognized as


for Fines and Amercements, (1st Am. ed. New

York, 1808).

Distress, as here defined, is not to be confused with the remedy of distress as used for the enforcement of Reeognizances or to compel the payment of fines and amercements, whore the right to distrain is derived from the agreement of the parties or from custom. Bradhy, on Distress, e. VIII, Of a Distress for Fines and Amercements, (1st Am. ed. New York, 1808).


Apparently, the carliest American ease to extend Re­plevin to cover a wrongful taking other than a dis­tress, was the New York ease of Pangburn v. Pat-ridge, 7 Johns. (N.Y.) 140 (1810),
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