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4. 3 Street, Foundations of Legal Liability, c. XVI, The Action of Replevin, 215, 216 (Northport, 1900).
6- 3 Street, Foundations of Legal Liability, C. XVI, The Action of Replevla, 209 (Northport, 1906).

6. 3 Blackstone, Commentaries on the Laws of Eng­land, e. IX, Of Injuries to Personal Property, 145, 146 (7th ed. Oxford 1775).
In Pangbura V. Patrldge, 7 Johns. (N.Y.) 140, 142 (1810), Ia referring to this very matter, Van Ness, J.,

255
extending to any unlawful taking from the plaintiff’s possession.7


declared: “The passage to that effect [that Replev­In lay only for an unlawful distress), in Black-stone’s commentaries [first published in 1767], Is not warranted by the books. This action is usually brought to try the legality of a distress; but it will lie for any unlawful taking of a chattel. Posses­sion by the plaintiff, and an actual wrongful taking by the defendant, are the only points requisite to support the action; and none of the cases, defining the nature of the action, confine it specially to the ease of a chattel, taken under pretence of a distress. The old authorities are, that Replevin lies for goods taken tortiously, or by a trespasser; and that the party injured may have Replevin. or Trespass, at his election. This is so laid down by Gascoigne, J., in 7 Hen. IV, 25b, and by Danhy, 3., in 2 Ed~v. IV, 16, and by Brian, J., in 6 lIen. VTI, 9, and these dicta are cited as good law, in Bro. tit. Replevin. p1. 86, 30, and in Roll,Abr. Tit. Replevin, B. The same rule was admitted by the judges in the case of Mason v. Dixon, (Jones Rep. 173) and in Bishop

v. Montague, Cro.Eliz. 824). Similar language is held, in many of the modern authorities, cited by the plaintiff’s counsel, upon the argument; and par­ticularly by Baron Giihert, Baron Comyn, and Lord Redesdale. The opinion of the latter is reported by Schoales and Lefroy, In which he lays down the law, with peculiar accuracy and precision. The provisions in our statute (11 Sess. e. 5). 12 R.8. 522, et seq.] apply chiefly to cases of illegal distress:

but there is nothing which confines the remedy to that particular injury.


If this question he considered upon principle, It Is proper this Action should be maintainable, wherever there is a tortious taking of a chattel out of the possession of another. A great variety of cases might be stated, in which no Damages which a Jury is legally competent to give, can compensate for the loss of a particular chattel.”
“The Nonsuit must, therefore, be set aside, and a New Trial granted, with costs to abide the event of the suit.”
7. “The Writ of Replevin, as shown by the Register, merely alleged an unlawful taking and withholding by the defendant.” 3 Street, Foundations of Legal Liability, e. xvi, The Action of Repievin, 215 (Northport, 1900); Mennie v. Blake, 0 El. & Li. 842, 119 Eng.Rep. 1078 (1856).
Replevin at Common Law was maintainable in eases where there was an unlawful taking and an unlaw­ful detention of personal property, and in such a proceeding there was a seizure under a Writ of Re­plevin of the subject-matter of the litigation at the beginning of the proceeding, while Detinuc at Com­mon Law was maintainable for the recovery of per-

Sec. 127 ACTION OF REPLEVIN



256


OFFENSIVE PLEADINGS

Ch. 12


The Extension of Replevin to Include Dat­inue

In the leading English case, Mennie v. Blake,9 and in the leading American case of Harwood v. Smethurst,° on Detinue factual situations, that is, where the defendant came into possession of the chattel lawfully, and thereafter unlawfully detained it, the plain­tiff, in both cases, instead of suing in Det­inue, brought Replevin, thus in effect re­questing the respective Courts to expand the Scope of Replevin so as to include a mere wrongful detention, and by this process of Judicial Legislation bring about the absorp­tion of Detinue by Replevin. This, both Courts, English and American, refused to do, Chief Justice Whelpley, in Harwood v. Sme­thurst,’° stating in the following striking lan­guage: “Although this remedy {Replevin] may be prompt, efficacious, and beneficial, and in many cases the only one giving the necessary relief to a party having a right to the possession of chattels, I do not feel at liberty, entertaining, as I do, a clear convic­tion that a tortious taking is necessary by the Common Law as the ground of the action, to indulge in judicial legislation for the purpose of enlarging the Scope of the Action.” Thus, the Court refused, by judicial action, to ex­tend Replevin to include an unlawful deten­tion, and thus bring about a merger of Deti­nue in Replevln.


But what the Court refused to do by ,Judi­cfa~ Legislation in the Mennie and Harwood cases, the Legislature of New Jersey did by express enactment, thus finally extending the scope of Replevin to include a lawful taking and an unlawful detention, which the Court
sonal property In all eases where there was an un­lawful detalner, regardless of the manner of taking, and recovery of the property was had only after Judgment. Tray Laundry Machinery Co. v. Carbon City Laundry Co., 196 rae. 745 (N.M.1921).
L 6 El. & BI. 842, 119 Engilep. 1078 (1850).
9- 29 NIL. 195, 80 Am.Dec. 207 (1861).
it 29 NIL. 195, 197, 80 AnDec. 207, 208 (1861).

had refused to sanction. The end was achiev­ed by a statute which provided “That any un­lawful detention of goods and chattels from their lawful owner, or the person entitled by law to the possession of the same, shall be deemed an unlawful taking for the purpose of supporting an Action of Replevin?’”


Prior to this development, if B merely de­tained goods which he had acquired law­fully, A had to proceed in Detinue and could not replevy the goods on the basis of an un­lawful detention. Replevin was in this re­spect like the statutory Summary Proceed­ings for Forcible Entry on Land. It contem­plated the situation where property, being in the peaceable possession of A, is seized by B. Provisionally, the status quo is at once restored, pending the settlement of the con­troverted right. In Form the Action pro­ceeds for Damages, but, if the plaintiff fails, the defendant will be given Judgment for the return of the chattels—the horse and plough.
After the provisional remedy of immediate delivery is granted both parties, as we have seen, become actors in the suit; the plaintiff to be vindicated in his possession and to re­cover Damages, while the defendant is like a plaintiff asserting his claim to the chattels. The pleading by which the landlord-defend­ant prayed for their return was formerly called an Avowry or Cognizance, which was in the nature of a Cross-Declaration. It fol­lowed therefore that the tenant’s next plead­ing, instead of being a Replication, was a Plea, with all other pleadings in consequence being deferred an additional stage, as com­pared with an ordinary action.
When is the Action Available—Nature of the Property

TO support Replevin, the property must be personal. The Action will not lie for taking property so attached to the freehold as to acquire the character of immovable fixtures,



11. 3 N.iCompSt, 4368, * 2 (1910).

Sec. 128


ACTION OF REPLEVIN

257


or real property; nor does it lie to recover growing crops or timberY But it will lie for removable fixtures, such as tenant’s fix­tures; and it will lie for things previously attached to the freehold, and for crops and growing timber which have been severed and converted into personal property.’3 Re­plevin cannot be maintained for money which has no identifying marks or receptacle.”
Wham is the Action Not Available

THE Action will not lie to determine the title to land. But the fact that question of


12. English: Hesketh v. Lee & Al! 2 Wms.Saund. 84,

85 Eng.Rep. 756 (1669); Illinois: Chatterton v. Saul,

16 Ill, 149 (1854); Massachusetts: Brown v. \Vallis,

115 Mass. 154 (1874); Michigan: MeAuliffe v. Mann,

37 311th. 539 (1877); Pennsylvania: floberls v.

Dauphin Deposit Bank, 19 Pa. 71 (1852); South

Carolina: Vausse v. Russell, 2 MeCord (S.C.) 329

(1823); Wisconsin: Buebsehmnnn v. McHenry, 29

Wis. 655 (1872).
Growing crops are subject to Replevin, without re­gard to whether they are growing or, having ma­tured, have ceased to derive any nutriment from the soil. Stephens v. Stcckdaub, 202 Mo.App. 392, 217 8.W. 871 (1920).
13. IllinoIs: Davis v. Easley, 23 Ill. 192 (lSSfl; Chat-tenon v. Saul, 16 III. 149 (1854); Ogden v. Stock, 34 III. 522, 5 Am.Dec. 332 (1864); Don v. Dudderar, 88 Dl. 107 (1878); Maine: Richardson v. York! 14 Me. 216 (1837); Massachusetts: Nichols v. Dewey, 4 Al­len (Mass.) 386 (1862); Michigan: Ortmann v, Sov­ereign, 42 Mich. 1, 3 N.W. 223 (1879); Marquette, B. & 0. B. Co. v. Atkinson, 44 Mich. 166, 6 NW. 230 (1880); Wait v. Baldwin, 60 Mich. 622, 27 NW. 697, 1 Am.St.Rep. 551 (1880); New York: Cresson v. Stout, 17 Johns. (N.Y.) 116, 8 Am.Dec~ 373 (1819); Pennsylvania: Coomalt v. Stanley, 8 Clark (Pa,) 389 (1786); Snyder v. Vaugx, 2 Rawle (Pa.) 423, 21 Am. Dee. 466 (1830); Young -v. Rerdic, 55 Pa. 172 (1867); Green v. Ashland Iron Co., 62 Pa. 97 (1869); Leh­man v. Kellerman, 65 Pa. 489 (1870); Wisconsin:

Stearnes cc Raymond, 26 Wis. 74 (1870).


Where the owner of land and all parties interested treated a warehouse erectcd thereon as personal property, Replevin will lie against one wrongfully taking possession of the same. Burdick t. Thm-A­Lurn Lumber Co., 91 Or. 417, 179 Pac. 245 (ThlD).
1~. Money Is not subject of an action of claim and delivery unless It Is marked or designed so as to make It specific as regards identification. lliIlyer

v Eggers, 32 CaLApp. 764, 164 Pac. 27 (1870).

title may incidentally arise will not neces­sarily defeat the action.’5
Replevin will not lie for timber, crops, or minerals severed and removed from land by one who is in the adverse possession of the land under a claim of title.’° It will not lie for property which is in the custody of the Law; that is, in the hands of Court or Exec­utive Officers under Attachment or other­wise.’7
REPLEVIN—DISTINGUISRED FROM AND CONCURRENT WITH OTHER ACTIONS
128. OriginalLy Replevin and Detinue were

distinguishable, one lying for a wrongful tak­ing anti an unlawful detention, the other for a lawful taking, followed by a wrongful tie­
15. It was held that Replevin could lie for ore dug from the plaintiff’s land, and that it was no objec­tion that the question of title might incidentally arise, if the action was not brought to try the title. Grecu v. Ashland Iron Co., 62 Pa. 97 (1869); Cl Christensen v. Banna, 183 DI.App. 115 (1913).
The title to land cannot be tried in an Action of Re­plevin. Mississippi: Hickingbottorn v. Lehman, 124 Mich. 682, 87 So. 149 (1921); New York: Walden v. Feller, 99 Misc. 576, 164 N.Y.Supp. 493 (1917).
16. Illinois: Anderson v. RapIer, 34 111. 436, 85 Am.

Dec. 318 (1864); Ogden v. Stock, 34 In. 522, 85 Am.

Dec. 332 (1864); Mississippi: Miller v. Wesson, 58

Miss. 831 (1881); Pennsylvania: Brown v. Cald­well, 10 Serg. & It. (Pa!) 114, 18 Am.Dec. 660 (1823);

Powell v. Smith, 2 Watts (Pa.) 128 (1833); Cromelien
v. Brink, 29 Pa. 522 (1858); Cf. l\IeKinnon v. Mes­ton, 104 Mieb. 612, 62 NW. 1014 (1895).
17. Illinois: Kingman & Co. v. Reinemer, 106 111. 208,

40 N.E. 786 (1897); Minnesota: Kelso v. Toungren,

86 Minn. 177, 90 NW. 316 (1902).
While Itepievin lies to recover personal propcrty un­lawfully detained, property in the custody of the Law cannot be so secured. Azparren v. Ferrel, 44 Nev. 157, 191 Pac. 571, 11 A.L.R. 678 (1920).
An automobile taken in possession and held by the Board of Police Commissioners of Baltimore City for use as evidence in a criminal prosecution is not subject to Replevin by a claimant. Good v. Board of Police Com’rs of City of Baltimore, 137 Md. 192, 112 Ati. 294, 13 ALE. 1164 (1920).
Under the Act of April 3, 1779 (1 Smith’s Laws, 470), § 2, a Writ of Beplovin to recover property seized bY a public official is unauthorized, and where so seiz.eil will, on motion, be quashed. York v. Mar­shall, 257 Pa. 503, 101 AU. 820 (1917).

258


OFFENSIVE PLEADINGS

Ch. 12

tention; these distinctions were obliterated by modern statutes extending the scope of Re­plevin to include Detinue. Replevin and Tres­pass were to be distinguished, in the sense that Replevin assumed property in the plaintiff, whereas Trespass assumed property in the tort­feasor. Otherwise Replevin became to a con­siderable extent a concurrent remedy with Detinue and Trespass; and later with Trover.

IT was early settled that Replevin would lie upon any wrongful taking. In conse­quence, Gascoigne, C. 3., in a case decided in 1406,18 said that Replevin was concurrent with Trespass. In theory, therefore, one who was disseised of a chattel might elect to sue in Detinue, Replevin and Trespass. If he sued in Detinue he might recover the chattel, or if it was not available, then he might recover its value, but it remained in

the defendant’s hands until the action was completed. If he sued in Replevin, he re­acquired the chattel as his own, plus dam­ages for the wrongful detention. If he sued in Trespass, he could recover damages for the full value of the chattel, as the action pro­ceeded on the theory that the property had vested in the tortfeasor.1° Still later, in more modern times, the Action of Trover al­so became available against a trespasser who took and converted chattels to his own use. But for some reason, not quite clear, Replev­in did not become popular as a concurrent remedy with Trespass. Streett° suggests that the explanation may lie in the circum­stance that in Bracton’s day Replevin was subject to Wager of Law, or it may have been due to the fact that the defendant-land-
18- YB. 7 Hen. IV, 28b, p1. 5. It YE. C Hen. VII, 8b, p1. &
See, also, Y.B. 19 Hen. VI, 65, p1. 5 (1442), In which Newton, J., declared: “If you have taken my chat­tels it is my election to sue in Beplevin, which sup~ poses the property to be In me, or to sue a Writ of Trespass, which supposes the property to he in you who took it. Thus, It is my choice to ~valve prop­erty or not”

2O. 3 Street, Foundations of Legal Liability, c. XVI, The Action of Replevin, 217 (Northport, 1906).

lord might sidetrack the action by raising an issue as to the ownership of the chattels

—the horse and plough.


But while Replevin and Detinue were con­current in a certain sense, they were to be distinguished with respect to the return of the chattel pending a determination of the matter of right between the parties. Of course, this distinction evaporated under modern statutes merging the two actions. And as we have seen, Replevin was to be dis­tinguished from Trespass, the one being available where the property in the chattel remains in the plaintiff, the other being available where the plaintiff chooses to as­sume the property to be in the trespasser.

FORMS OF THE ORIGINAL WRIT, PLAINT, DECLARATION AND BOND IN

REPLEVIN
129. This section contains Forms of the Original Writ, Plaint, Declaration and Bond in the Action of Replevin,
The Original Writ in Replev4n

THE Original Writ in R.eplevin gave the Action a dual character; it furnished an ex­peditious method by which the tenant could immediately regain possession of the horse and plough, and it authorized a hearing as an incident thereof to determine the legality of the alleged wrongful taking and detention, and award Damages, and at one stage in the



development of the Action this hearing

might be held before the Sheriff. Viewed from the standpoint of the first command of the Writ, the Action appears to be a proceed­ing to regain possession of personal property wrongfully taken and detained, and it has been so viewed by some authors.~’ Viewed from the standpoint of the second command of the Writ, the Action appears to be a Pro­ceeding to Recover Damages for the unlaw­ful taking and detention of personal property,



21. Bouvler, Law Dictionary, Replevin.

Sec. 129

ACTION OF REPLEVIN

259


and it has been so defined by Saunders,22 Stephen 23 and Tidd.24 Despite statements which have been construed to the contrary,25 no case of Replevin appears which has not been commenced with a Writ requiring the Sheriff to cause the goods to be replevied, or by Plaint to the Sheriff, followed by a precept to replevy the goods.26
The two proceedings, in reality, were nev­er separate and independent of each other. The recovery of the goods under the first command of the Writ was only provisional, that is, it restored possession of the chattels to the plaintiff, pending proceedings under the second command to do justice; if the plaintiff failed to make out his case, the chat­tels of necessity were returned to the def end-ant. The dual character of the Original Writ in fteplevin will appear in the Form of the Original Writ set out below.
Distinction Between Hepievin in the Detinuit and Replevin in the Detinet

AT Common Law Replevin in the detinet lay for a wrongful detention of goods taken under a lawful distress for rent.2~ But in practice the action was usually confined to cases of wrongfui distress, such as a wrong­ful distress for rent, damage feasant, sewers’ rates, and the like.28
22. Saunders, The Law of Pleading and Evidence in Civil Actions, 760, Iteplevin, (Philadelphia 1829).
23. Stephen, A Treatise on the Principles of Pleading in Civil Actions, ~. I, Of the Proceedings in an Ac­tion from Its Commencement to Its Termination, 52 (3d Am. ed. by Tyler, Washington, D. C. 1895).
24. 1 Tidd, The Practice of the Court of King’s l3ench in Personal Actions, c. I, Of Actions, 5 (2d Am. eth, New York, 1807).
25. Pearson v. Roberts, Wines 668, 125 EngRep. 1376 (1755).
28. Fletchcr v. Wilkins, 6 East 286, 102 Eng.Itep, 1295 (1805).
27. Evans v. Elliott, 5 Ad. & IL 142, 111 Eng.Rep.

1120 (1836).


28. Martin, Civil Procedure at Common Law, c. III, Personal Actions Ex Delicto, Art. V. Beplevin, 93, 96 (St. Paul, 1905).

The Modem Form of the Action of Replev­in is in the detinuit, which is so called be­cause, as the word imparts, it is brought when the goods have been delivered by the Sheriff to the plaintiff.29 Replevin in the detinet lay to recover goods which were still detained, but it has long been obsolete. It follows therefore that when Replevin in the detinet was available, the plaintiff was en­titled to recover the value of the goods as well as Damages for their taking; 30 whereas in Replevin in the detinuit, the plaintiff was entitled to recover only Damages for the wrongful taking.


Wilkinson ~‘ understood that there were two kinds of Replevin—one in the detinuit and the other in the detüwt. But Martin sug­gests that this supposition was the direct outgrowth of a reasonable Variation in the Declaration, turning on whether the Sheriff found or failed to find the property. If the property was found and delivered to the plaintiff, the plaintiff then declared in the detinuit, describing the wrong for which he claimed Damages as an accomplished act of the past.32 In this Form of the Declaration, it was alleged that the goods taken “were de­tained until replevied by the Sheriff” a phrase which came to be abbreviated by al­leging that they were “detained until, etc.,” which was called “Declaring in the Deti­nuit”” As the Sheriff was usually success­ful in delivering the hone and plough, this was the more usual Declaration; it was filed after the result of the Sheriff’s action was known, and Damages were only for the orig­
29. 1 Wins. Saunders 347, 85 tng.Rep. 504 (1669).
3°. Petree V. Duke, 2 Lutw. 1130, 125 Eng.Bep. 637 (1686).
31. Wilkinson, The Practice in the Action or fleplevin with a CoUcction of Practical Forms, c, II, 22, 23 (London, 1525).
32. MartIn, Civil Procedure at Common Law, e. III, Personal Actions Ex Delleto, Art. v, Replevin, 100 (St. Paul, 1905).

33. Hammond, Nisi Prius, c. VI, 460, 461 (London,

1816).


260

OFFENSIVE PLEADINGS

Cli. 12

inal wrongful taking and past detention by the landlord-defendant.34 If, however, he was unable to find and return the horse and plough to the tenant, the plaintiff might, at his option, compel the defendant to answer for the wrongful taking and detention, in Damages, in which case he declared in the detinet. In such an instance the plaintiff re­covered Damages for the continued detention of the chattels, which was inclusive of the full value of the chattels taken and still de­tained, as well as Damages for the wrongful taking?5 The same Declaration could be a detinuit as to the part returned, and a defl­net as to the residue not found or returned.36


Martin suggests that there probably never was a distinct Action of Replevin in the deti­net, but that there was also probably never a time when, after issue of the Replevin Writ, the plaintiff could not declare in the detinet if the Sheriff failed to redeliver the goods, as it was quite clear that unless he did so, he could not recover the value of the chattels.3
In any event it seems evident that the Variation in the Form of Declaration had no effect in changing the action; but went only to the Measure of Damages, and this ceased to be necessary, as under the Declaration in the cietinuit, as finally developed, the Courts permitted the plaintiff to show that the goods were still detained, so as to bring their value into the assessment, and hence to that end the value was alleged in the Declaration
34. Anonymous, 1 Esp. 850, 170 Eng.Rep. 381 (1795).
33. Browne, A Practical Trcatise on Actions at Law,

e. VI, Forms of Action, ~ 10, Replevin, 319, 447

(Philadelphia, 1842).


3~. For a Declaration in which the Two Forms are combined, see Morris, Law of Replevin in the United States, c. VIII, 306 (Philadelphia, 1878); and for another example, see McXelvy, Principks of Com­mon Law Pleading, c. UI, Actions Eased on Natural Rights, Section IV, Replevin, 69, p. 50 (New York, 1894).
87. MartIn, Civil Proce6ure at Common Law, e. UI, Personal Actions Ex Delicto, Art. V. Beplevln, 99 (St Paul, 1905).

in the detinuit?8 As present detention might be treated as a continuation of the original taking and detention, as it went only to the Measure of Damages, and not to the right of action, it became unnecessary to declare in the detinet, and this may explain why this latter Form of Declaration in Replevin be­came obsolete.


It should be observed, however, that the Writ was always in the detinet, and that the Modern Action of Replevin in many Ameri­can States, being instituted before the issu­ance of the Writ or Order, is usually in that form.
The Venue in Replevin is Local,39 but the Venue in an Action on the Bond is transi­tory.4° And the goods must be stated with certainty in the Declaration, but certainty to a general intent is sufficient.
FORM OF ORIGINAL WRIT IN REPLEVIN
GEORGE THE FOURTH, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith,
To the sheriff of County,
GREETING:

We command you, that justly and without delay you cause to be replevied to AS. his cattle, goods, and chattels which C.D. hath taken and unjustly detaineth, as he saith, and after cause him to be brought to justice for the same; that we hear no more com­plaint for want of justice. Witness ourself at Westminster, the day of

in the year of our reign.
WILKINSON, The Practice in the Action of Replevin, 143 (London, 1825).
3~. MeKelvy, Principles of Common Law Pleading, C.

III, Actions Eased on Natural Rights, Section IV, Replevin, ~ 69. p. 50 (New York, 1894).
39. Potter v. North, I Wms. Saunders, 347, ~. 1, 55 Eng.Rep. 503 (1689).

40. Rex v. Jones & Palmer, I Leach 366, 168 Eng.Eep.


285 (1785).

Sec. 129


ACTION OF REPLEVJN

261


FORM OF PLAINT IN REPLEVIN
To the sheriff of county.

GREETING:


A.B. complains against CD. in a plea of taking and unjustly detaining his cattle against sureties and pledges, etc.

Pledges to Prosecute,

E.F.
&
G.H.

GILBERT, The Law and Practice of Dis­tresses and Replevins, 235 (3d ed. by Hunt, London 1793).


FORM OF DECLARATION IN REPLEVIN

State of
County.

}ss

Court of County.



Term, A.D. 19—.

Plaintiff in this suit, by

his attorney, complains of , defendant in this suit, of a plea wherefore he wrong­fully took the goods and chattels of the said plaintiff and unlawfully detained the same until, etc. For that the said defendant, on

the thy of , in the year 19_,

at No. , Street in the city of

in the county aforesaid, wrongfully took the goods and chattels, to wit: [de­scribing them], of the said plaintiff, of the value of dollars, and unjustly de~ tamed the same until, etc.
And also wherefore the defendant unjustly detained the goods and chattels until, etc. For that the said defendant, on the _______

day of , in the year 19_, at No.

Street in the city of

in the county aforesaid, the goods and chat­tels of the said plaintiff, to wit, [describing them], of the value of dollars, wrong­fully detained, etc.


But that the said defendant, although often requested, bath refused, and yet refuses, to

deliver the said goods and chattels above mentioned to the said plaintiff.


Wherefore the said plaintiff says he is injured and hath sustained damage to the amount of dollars, and therefore he brings his suit, etc.
Plaintiff’s Attorney
ENCYCLOPEDIA OF FORMS. Forms No. 6,939 and No. 17,730.

FORM OF BOND IN REPLEVIN

SUPREME COURT
(New York) County.

(Title of Action.)



WHEREAS, (John Jones), the plaintiff in this action, has made an affidavit that the defendant (John Doe) wrongfully detains certain personal property in said affidavit mentioned, of the value of (eight thousand) dollars ($8,000), and the plaintiff claims the immediate delivery of the said personal prop­erty to him, as provided for by Article 66 of the Civil Practice Act.
NOW, THEREFORE, in consideration of the taking of said property or any part there­of by the sheriff of the County of (New York), by virtue of the said affidavit and the requisition thereupon indorsed, we, the undersigned (John B. Taylor), of (No. 2~ West First Street, Borough of Manhattan, City of New York), and (Charles T. Fur­man), of (No. 134 East Fourth Street, Bor­ough of Manhattan, City of New York), and (John Jones), of (No. .76 West Seventieth Street, Borough of Manhattan, City of New York), do hereby jointly and severally under­take and become bound to the defendant in the sum of (Sixteen thousand) Dollars ($16,000) [not less than twice the value of the chatteL or chattels as stated in the affidavit], for the prosecution of the action by the plaintiff, in the (New York Supreme Court), against the defendant, for the return

262


OFFENSIVE PLEADINGS

Ch. 12


to the defendant of the said property if pos­session thereof is adjudged to him, or if the action abates or is discontinued before the

said property is returned to the said defend­ant, and for the payment to the defendant of any, sum which the judgment awards to him against the plaintiff.


Dated, (New York, July 24, 19—).

(John B. Taylor),

(Charles T. Furman),

(John Jones).

MEDINA’S BOSTWICK, Common Prac­tice Forms (Form 564) 838 (5th ed. by Can­non, Davison, Edelman, Grimes and Schnei­der, Albany, N.Y. 1955).
DECLARATION IN REPLEVIN—-ESSENTIAL

ALLEGATIONS; (1) IN GENERAL
130. The Essential Allegations of the Dec­laration are:

(I) The plaintiff’s Title to Certain Goods at the Commencement of the Ac­tion;
(II) The Unlawful Taking and Deten­tion; or by Statute in Some States, an Unlawful Detention only;
(III) The Demand and refusal in Certain

Cases;


(W) The Damages

The property must be described sufficiently for identification, but the right of the plaintiff may be generally stated.
AS has been stated before, the property which is the subject of this action must be personal, and such as is capable of definite description and of delivery; and, in describ­ing it in the Declaration, care and accuracy must be used, since the question of identifica­tion is an important one. Where the chattels taken and detained are in their nature dis­tinguishable from an others of a similar kind, less particularity of description is required than when they are not so distinguishable. In the latter case the Declaration must go further, and show what indicia or earmarks

are peculiar to them.4’ The plaintiff should Count on the identical chattels replevied, and no more or less, as the defendant might be entitled to a Judgment for the return of a larger or the correct number, though not a number less than actually in question; ~ and the Declaration should also state their value correctly, though the strictness formerly necessary is not now required.43 In brief, here, as in all cases where specific property is in question, the statement must be suffi­ciently accurate and complete for the Court and Jury to see that the property as to which



evidence is offered is the same as that re­ferred to in the pleadings.

The practice in bringing Actions of Re­plevin is now almost universally regulated by statute, and the statutes must therefore be consulted. In some states the Declaration is not used at all, but an Affidavit takes its place. In these cases the Affidavit must comply with the rules above stated, for it must, like a Declaration, show facts consti­tuting a cause of action,


DECLARATION IN REPLEVIN—ESSENTIAL

ALLEGATIONS: (2) THE PLAINTIFF’S

RIGHT, TITLE, INTEREST OR POSSES­SION
131. It is sometimes said that the Jieclara­tion must allege a General or Special Property Interest in the articles taken and detained, or (by statute) merely detained, and the plaintiff’s
41. Indiana: Magee v. Siggerson, 4 Blackf. (md.) 70

(1835); Ball v. Durham, 117 Ind. 429, 20 N.E. 282

(1889); Wood v. Darnell, 1 Ind.App. 215, 27 N.E. 447

(1891); Maine: Wingate v. Smith, 20 Me. 287 (1841):

Massachusetts: Rider v. Robhins, 13 Mass. 285

(1816); Missouri: cnim v. Elliston, 33 Mo.App. 591

(1890); South Carolina: Lockhart v. Little, 30 S.C.

326, 9 SE. 511 (1889).


42. Maryland: Sanderson’s Ex’rs v. Marks, 1 Bar. &

0, (Md.) 252 (1827); New York: Root v. Woodruff,

6 Hill. (N.Y.) 418 (1844).
43. MaIne: Thomas v. Spofford, 46 Me. 408 (1859); Massachusetts: Pomeroy v. TrAmper, 8 Allen (Mass.) 398, 85 Am.Dec. 714 (1864).
And, as to the effect of the statement, see Bailey, sury. v, EllIs, 21 Ark. 488 (1860).

Sec. 131


ACTION OF REPLEVIN

263


right thereto, but in truth the right of im­mediate possession is necessary.

TO support Replevin, the plaintiff must have and must allege such a property in the goods, either General or Special, as en­titled him to the immediate possession of them, as against the defendant. It is not sufficient to allege that the plaintiff was “en­titled to the possession of the goods”; the Declaration should aver that the articles were the “goods and chattels of the plaintiff” at the time of the taking.44 If he cannot show this, the action must fail, without re­gard to whether the defendant has any title, or not; for the action must be maintained, if at all, on the strength of the plaintiff’s own title and right.45 Even though he may


44. California: Harris v. Smith, 132 Cal. 316, 64 Pac.

409 (1901); Illinois: Warner v. Canton, 22 III. 415

(1859); New York: Bond v. Mitchell, 3 Barb. (N.Y.)

304 (1848). See, also, Puterbaugh, Illinois Pleading

and Practice, c. IV, 309 (7th ed. Chicago, 1803).

In Almada v. Vandccar, 94 Ore. 515, 185 Pac. 907 (1919), a Beplevin Complaint, alleging that the plain­tiff was the owner of a steer when it was taken from him by the defendant, but not alleging that the plaintiff was entitled to the possession at the time the action was commenced, which was some two years later, was held insufficient to support a Judgment for the plaintiff.
And a Complaint In an Action of Replevin should state facts from which it may be inferred with rea­sonable certainty that the plaintiff is entitled to the possession of the property at the time of the Com­mencement of the Action, an Allegation of Owner­ship being insufficient, inasmuch as the owner may not be entitled to possession Bush v. Bush, 55 Utah 237 184 Pac. 823 (1919).
45. Arkansas: Wilson v. floyston, 2 Ark. 315 (1830);

Illinois: Holler v. Coleson, 23 Ill.App. 324 (1886); Pease v. Ditto, 189 Ill. 456, 59 N.E. 983 (1901); In­diana: Walpole v. Smith, 4 Blackf. (md.) 304 (1837);

Maine: Thomas v. Spofford, 46 Me. 408 (1859);

Massachusetts: Waterman v. Robinson, 5 Mass. 303 (1800); Johnson v. Ncale, 6 Allen (Mass.) 227 (1863); Hallett v. Fowler, 8 Allen (Mass.) 93 (1864); Stan­ley v. Neale, 98 Mass. 343 (1807); Tracy v. Warren, 104 Mass. 376 (1870); New York: Pattison v. Adams, 7 Hill (N.Y.) 126, 42 Am.Dee. 59 (1845); Pennsylva­nia: Lester v, McDowell, 18 Pa. 91 (1851).



To maintain Replevin, the plaintiff must show title anti a right to possession. Massachusetts: Doody v. Collins, 223 Mass. 332, 111 N.E. 897 (1916); Okia­

have an interest in the property, if, as ob­served above, he is not entitled to the imme­diate possession thereof, he must seek redress in some other form of action,4° for Replevin will not lie.


Possession in the plaintiff at the time of the caption is not necessary. It is sufficient
homa: First Nat, Bank v. Kreuzberg, 75 OkIa. 97,

181 Pac. 717 (1019); Oregon: Bro~vn v. Sheedy, 90

Ore. 74, 175 Pac. 613 (1918).
40. English: Gordon v. Harper, 7 TB. 9, 101 Eng. Rep. S29 (1796); Illinois: Haverstick V. Fergus, 71 III, 105 (2873); Indiana: Ohinn v. Russell, 2 Blackf.

(md.) 174 (1828); Iowa: Kingsbury v. Buchanan, 11 Iowa 387 (1860); Maryland: Smith v. Williamson, 1 Hay. & S. (Md.) 147 (1801); Massachusetts: Wheel­er v. Train, 3 Pick. (Mass.) 256 (1625); Collins v. Evans, 15 Pick. (Mass.) 64 (1333); Michigan: Belden

v. Laing, 8 Mich. 500 (1860); Hunt v. Strew, 33 MIch. 85 11875); Nevada: Azparren v. FermI, 44 Nev. 157, 191 Pac. 571, 11 A,L.R. 678 (1920); Penn­sylvania: Lester v. McDowell, 18 Pa. 01 (185fl:

Weed v. FlaIl, 101 ~a. 592 (1882),


Though a chattel mortgagee may maintain Beplevin against the mortgagor or a third person after con­dition broken, he cannot maintain the action either before default in payment, nor after such default, but before expiration of the time during which the mortgagor may retain possession. Even the Gener­al Owner of a chattel cannot maintain the action where another has a Special property interest there­in giving him, and not the general owner, the right to possession. The action must be brought by the special owner. Hunt v. Strew, 33 MAch. 85 (1875).
The lessee of attached property, and not the lessor, is the proper party to bring Beplevin. Illinois: Simp­son v. Wrenn, 50 Ill. 222, 99 Am.Dec. 511 (1869);

Michigan: Hunt v. Strew, 33 Mich. 85 (1875); Mis­soul’i: Moore v. Moore, 4 Mo. 421 (1836).


The seller of a chattel unconditionally cannot main­tain Replevin therefor against the buyer merely be­cause the latter has not paid for it. McNail v. Ziegler, 68 Iii. 224 (1874).
But if the sale was for “cash on delivery,” the Action lies, if the chattel is not so paid for immediately upon demand therefor. Dole v. Kennedy, 38 Iii. 282 (1865).
And a vendor may rcplevy goods sold by him where the possession was obtained from him by the per­petration of a fraud. Illinois: Goldsebmidt v. Ber­ry, 18 Ill,App. 276 (1885); Farwell v. Hanehett, 19 111.App. 620 (1886); Farwell v. Hanchett, 120 III.

573, 11 N.E. 875 (1887); MIchigan: Carl v. MeGoni­gal, 58 Mieb. 567, 25 N.W. 516 (1885); Pennsylvania:

Bush v. Bender, 113 Pa. 94, 4 At!. 213 (1886).

OFFENSIVE PLEADINGS



if he has the right to possession at the time of suit.47
It is not at all necessary that the plaintiff shall be the General Owner. A Special Prop­erty will support the action, even as against the General Owner, if it is such as to give the right to the immediate possession.45
41- Arkansas: Bostick v. Brittain, 25 Ark. 482 (1854);

Maryland: Powell v, Bradlea, 6 Gill&.T. (Md.) 220

(1876); Massachusetts: Baker v. Pales, 16 Mass. 147

(1819); Pratt v. Parkman, 24 Pick. (Mass.) 42(1834);

Miller v. Warden, 111 Pa. 300, 2 Atl. 90 (1886) ; Mid-

vale Steel Works v. Hallgartcn & Co., 15 Wkly.

Notes Cas. (Pa.) 47 (1791).
One who has the legal right to the possession of prop­erty under a Bill of Lading may maintain Replevin therefor, although he has never had possession. Powell v. Bradlee, 6 Gill. & 3. (Md.) 220 (1876).
And the Action may be maintained by the mortgagee of a chattel against one who takes it from the pos­session of the mortgagor after default in payment by the latter. Massachusetts: Esson V. Tarbell, a Cush. (Mass.) 412 (1852); New York: Fuller v. Acker, 1 Hill (N,Y.) 473 (1841).
So, where a person, to secure advances, gave another a shipper’s receipt for goods in iransitu, it was held that the latter could maintain Iteplevin. Midvale Steel Works v. Hailgarten, 15 Wkly. Notes Cas. (Pa.) 47 (1791).
The gist of an Action in Reple’vin is the right to the immediate possession of the property in controversy. Bank of Buffalo v. Crouch, 174 Pac. 764 (Okla.1918L The Writ of Iteplevin is a possessory action, and does not necessarily involve title. Scarborough v. Lucas, 119 Miss. 128, 80 So, 521 (1019).
4S’ Illinois: Quinn v. Schmidt, 91 III. 84 (1878); In­diana; Kramer v. Mathews, 68 Ind. 172 (1879); Entsminger v. Jackson, 73 md. 144 (1880); Massa­chusetts: Tyler vc Freeman, 3 Cush. (Mass.) 261 (1849); Gordon v. Jenney, 16 Mass. 465 (1820);

Michigan: Gould v, Jacobson, 58 Mleh. 288, 25 N.W. 194 (1885); New York: Grosvenor v. Phillips, 2 Bill. (N.Y.) 147 (1841); Pennsylvania: Mead v. Kilday, 2 Watts. (Pa.) flO (1833); Woods v. Nixon, Add. (Pa.) 131, 1 Am.Dec. 364 (1793); Harris v. Smith, 3 Serg. & H. (Pa.) 20 (1817); Young v. Kimball, 23 Pa, 193 (1854); Miller v. Warden, 111 Pa. 300, 2 Atl. 00 (1886).


ileplevin may be maintained by a pawnee, pledgee, or other person having a lien, and the right to posses­sion. Reichenbacli v. McKean, 95 Pa. 432 (1880); Bartman v. I(eown, 101 Pa. 841 (1883).
Ihe action may be supported by the mortgagee of chattels upon eonthtion broken. Illinois: Cleaves v.

Right of Possession is the ground Of the action, rather than General Ownership.
In reason, it would seem to be clear that the right of the plaintiff to possession of the property, as against the defendant, should be the only question to be determined, and that actual title should only be material in so far as it determines this right. In some states, however, it is held that mere posses.

sion at the time of the unlawful taking of property by one without any authority at ali is not enough to support Replevin, though it might be sufficient to support Trover; that either a General or Special ownership must be shown, even as against a mere wrongdoer; and that, for instance, one who has the care of goods merely for safe-keep­ing, without any interest in them, cannot maintain the action.49 In some states, on the other hand, no title need be shown, as against


Herbert, 61 ill. 126 (1871); Massachusetts: Esso:, s-. Tarbell, 9 Cush. (Mass.) 412 (1852); MIchigan:

Hendrickson v. Walker, 32 Mich. 68 (1875); Gould v. Jacobson, 58 MIch. 288, 25 NW. 104 (1885); New

York: Fuller v. Acker, 1 Hill (N.Y.) 473 (1841);

Federal: Wood v. Weimar, 104 U.S. 786, 20 L.Ed. 779 (1881).


And the mortgagee may maintain Replevin against a person who levies on the property as the property of the mortgagor, where the mortgage provides that the debt shall become due, and the mortgagee shall be entitled to possession in case of a levy. Quinn v. Schmidt, 91 Ill. 84 (1878).
But the action will not lie where the time tlurine which it is agreed that the mortgagor may retain

possession has not expired. Maine: Ingraham v.

Martin, 15 Me. 378 (1839); Massachusetts: Essou v. Tarbell, 9 Gush. (Mass.) 412 (1852).


The action may be maintained by an auctioneer who is entitled to possession. Tyler v. Freeman, 3 Gush. (Mass.) 261 (1849); Rich v. Rider, 105 Mass. 310 (1870).
And it may be maintained by an officer having a right to possession under a levy. Massachusetts: Gordon v. Jenney, 16 Mass. 465 (1820); New York: Dezell v. Odell, 3 Hill (KY.) 215, 38 Am.Dec. 628 (1342).
49. IndIana: Walpole v. Smith, 4 Blaekf. lEnd.) 304

(1837); Massachusetts: Waterman v. Robinson, 5

Mass. 803 (1809); Ferley v. Foster, 9 Mass. 112

(1812); Warren v. Leland, 9 Mass. 265 (1812); New

York: Dunham v. Wyckoff, 3 Wend. (N.Y.) 280, 20

264


Ch. 12

Sec. 131


ACTION OF REPLEVIN

265


a mere wrongdoer. Where goods are taken from a person in peaceable possession, by one who has not title or authority, the mere prior possession will support the action against the latter.5°
The mere custody of a servant or agent is an insufficient basis to enable him to bring Replevin for a wrongful taking, but suit must be brought by the one for whom he holds.5
The plaintiff must in all cases have the right to possession at the time the action is brought, and not merely at some prior or subsequent time; for “the state of things existing when the suit is commenced will control the determination.” 52
Am.Dec. 695 (1829); Miller v. Adslt, 16 Wend. (N.Y.) 335 (1836).
Beplevin is a possessory action, and lies only in favor of one entitled to possession at the time of its eon,­meneement, and the right to possession must be coupled with Ownership, either General or Special.

Delaware: Prick v. Miller, 7 Boyce (Del.) 366, 107 AU. 391 (1918), judgment aff’d Miller v. Frick’s Admr, 7 Boyce (Del.) 374, 107 Atl. 394 (1919); Penn­sylvania: White Co. v. Union Transfer Go., 270 Pa. 514, 113 AtL 432 (1921).


50. Illinois: Cleaves v. Herbert, 61 Ill, 126 (1871)

Van Namee v. Bradley, 69 III. 290 (1873); Onnimins v. Holmes, 109 III. 15 (1884); Pennsylvania: Harris v. Smith, 3 Berg. & B. (Pa.) 20 (1815).
One in the sole and peaceable possession of goods, not as an intruder, trespasser, or wrongdoer, but as owner, either of the whole or some Special Property in them, has a valid title as against all strangers, which they cannot defeat by showing an outstand­ing title in some third party. Michigan: Van Baalen y. Dean, 27 Mich. 104 (1873); Sandford v. Milliken, 144 Mich. 311, 107 NW. 884 (1906); South

Carolina: Hall v. Ligon, Ml S.C. 245, 97 SE. 710 (1918); Federal: Wood v. Weimar, 104 U.S. 786, 26 LEd. 779 (1881), holding that a right of possession suffices.


51. Illinois: Horn v. Zimmer, 180 Ill,App. 323 (1913); Pease v. Ditto, 189 Ill. 456, 59 N.E. 983 (1901);

Massachusetts: Warren v~ Leland, 9 Mass. 265

(1812),
52. Cobbey, Law of Replevin as Administered by tile Courts of the United States, e. II, Scope and Nature of the Action, § 25 (2nd ed. Chicago, 1900); See, also, the following eases: Illinois: Moriarty v. Stofferan,

A Tenant in common cannot maintain Re­plevin against his co-tenant.13 And it is held in some states that one tenant in com­mon of goods cannot alone maintain this action; that he cannot, for instance, main­tain it against an officer who attaches the goods as the sole property of the other own­er.54 “Replevin,” said the Massachusetts Court, “is an action founded on the General or Special property of the plaintiff, and it is settled that, when a chattel is illegally taken and detained, all the part owners must join in Replevin; and it is a good Plea in Abatement that the property is in the plain-

tiff and another.” ~

This would not apply

to the full extent in those states where it is held that mere possession at the time of the unlawful taking of goods, without any other title, is sufficient to support Replevin against the wrongdoer.56
89 III. 528 (1878); Michigan: Gary v. Hewitt, 26 Mich. 228 (1872).
The right to maintain Replevin must exist at the very moment the Writ is issued. Wattles v. Du Boir, 67 Mieb. 313, 34 NW. 672 (1887).
5~. Massachusetts: Willis v, Noyes, 12 Pick. (Mass.)

324 (1832); Barnes v. BartLett, 15 Pick. (Mass.) 71

(1833); Michigan: Wetherell v. Spencer, 3 Mich.

123 (1854); ICindy v. Grcea, 32 Mich. 310 (1875);

Busch v. Nester, 70 Mich. 525, 38 NW. 458 (1888).
54. Hart v. Fitzgerald, 2 Mass. 509, 3 Am.Dec. 7S (1807); Gard,ier v. Dutch, 9 Mass, 427 (1812); Lndd v. Billings, 15 Mass. 15 (1818); Scudder v. Worster, 11 Gush. (Mass.) 573 (1853).
But when a mass or mixture of similar, specific ainl fungible articles belong to several parties in differ­ent and distinct proportions, each owner may main­tain Replevia for his proportion against one whG unlawfully takes and dotains all the articles, though they have never been separated, and have no dis­tinguishing marks. Massachusetts: Gardner v. Dutch, 9 Mass, 427 (1812); New Mexico: Page v. Jones, 26 NM. 195, 190 Pac. 541, 10 ALIt. 761 (1920); Halsey v. Simmons, 85 Ore. 324, 166 Pae~ 944, L.R.A.1918A, 321 (1917).
S~. Hart v. Fitzgerald, 2 Mass. 509, 3 Am.Dee. 75 (1807).
66. In Michigan, for instance, It was held that Reple­yin lies by a tenant In common who is entitled to the possession of an undivided interest in personal prop­erty against a wrongdoer who is a stranger to the

266 OFFENSIVE PLEADINGS



DECLARATION IN REPLEVIN—ESSENTIAL

ALLEGATIONS: (3) TUE WRONGFUL

ACT OF TAKING AND DETENTION BY

THE DEFENDANT
132. The Declaration must show such an in­terference by the defendant as subjects him to liability in Replevin under the Jaws of the
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