SECTION 3

REPLEVIN

1

REPLEVIN is an ancient form of action. Originally it was narrowly restricted in its scope, lying only against one accused of having wrongfully distrained chattels of the complaining party.2 The distrainee was entitled at the outset to receive the chattel distrained, upon giving security that he would proceed to contest the distrainor's rights, and that if unsuccessful in the action he would return the chattel to the distrainor. Subsequently the scope of the action was enlarged so that it lay in cases of wrongful taking other than wrongful distress. In some of the United States it was further extended by decision or by statute so as to be available in cases of wrongful detention where the taking was admittedly rightful." In some of the United States also the defendant is allowed to get back the property upon giving security that he will return it or its value. if he should be unsuccessful in the action. If the sheriff could not find the chattel, the action might proceed at common law and the plaintiff might recover its value. In some of the United States, however, the action cannot proceed unless the sheriff is able to find the chattel.*

STEPHEN, PLEADING. (Williston ed. 1895) *225, note (c).

THE action of replevin differs from other actions in the names of the pleadings. If the defendant pleads some matter confessing the taking, but showing lawful title to do so, by way of distress, such pleading is not (as it would be in other actions) called a plea in bar, but an avowry, or a cognisance; the former term applying to the case where the defendant sets up right or title in himself;. the latter being used when he alleges the right or title to be in another person, by whose

1 In the very early common law there was replevin for land seized in default of appearance on a writ of right and replevin of men in arrest. See Morgan, Introduction to the Study of Law (1926) 60, n. 6, citing cases in the early part of the thirteenth century. But these seem to have been substantially unrelated to the action of replevin for wrongful distress.

2 At common law, a landlord had a right to distrain for rent or feudal services, i.e., to take chattels found on his tenants' premises, and a landowner had a right to distrain cattle damage feasant, i.e., actually doing damage on his land. In neither case did the distrainor get the right to sell or use the chattels distrained. See 3 Street, Foundations of Legal Liability (1906) 278313. On the early history of distress and its relation to the action of replevin, see 2 Pollock and Maitland, History of English Law (2d ed. 1898) 573–576.

3 On the history of replevin, see Ames, Lectures on Legal History (1913) 64-70; 3 Holdsworth, History of English Law (5th ed. 1942) 283-287; 3 Street. Foundations of Legal Liability (1906) 207-222.

• See Warren v. Leiter, 24 R. I. 36 (1902) (statutory).

command he acted. Com. Dig. Pleader, (3K. 13, 14). The answer to the avowry or cognisance, is called plea in bar; and then follow replication, rejoinder, &c.; the ordinary name of each pleading being thus postponed by one step.

WRIT IN Replevin.

Chitty, Forms of Practical Proceedings (2d ed. 1835) 483.

WILLIAM 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 greeting: We command you, that justly and without delay you cause to be replevied to A. B. his cattle, goods, and chattels, which C. D. hath taken and unjustly detaineth, as he saith; and afterwards 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.

DECLARATION IN REPLEVIN.

Adapted from Stephen, Pleading (Williston ed. 1895) *48.

IN THE KING'S BENCH.

The

day of Lord

in the year of our

day of

to wit, C. D. (the defendant in this suit,) was summoned to answer A. B. (the plaintiff in thus suit,) of a plea, wherefore he took the cattle of the plaintiff, and unjustly detained the same, against sureties and pledges, until, &c.; and thereupon the plaintiff, by his attorney, [or, in his own proper person,] complains: For that the defendant heretofore, to wit, on in the year of our in the county of in a certain place there took the cattle, to wit, one mare, of the plaintiff, of great value, to wit, of the value of pounds, and unjustly detained the same, against sureties and pledges, until, &c. Wherefore the plaintiff saith that he is injured, and hath sustained damage to the value of pounds; and therefore he brings his suit, &c.

Lord called

at

PANGBURN v. PATRIDGE.

SUPREME COURT OF JUDICATURE, NEW YORK. 1810.

7 Johnson 140.

THIS was an action of replevin, brought against the defendant, for unlawfully taking and detaining a heifer, belonging to the plaintiff. The defendant pleaded non, cepit, and that the heifer was his property, &c.

The cause was tried at the Saratoga circuit, before Mr. Justice Van Ness.

At the trial, the plaintiff proved a regular bill of sale, and delivery of the heifer and other cattle, from Joseph Pangburn, to the plaintiff, for the consideration of 100 dollars. While the cattle were in the possession of the plaintiff, the defendant took and drove away the heifer in question, alleging, that he took it for a debt due to him from Joseph Pangburn.

The defendant moved for a nonsuit, and the judge decided that the plaintiff could not recover in this form of action. The plaintiff offered further evidence, to show htat the defendant had no right, or claim of property whatever in the heifer; but the judge, being of opinion that the right of property could not be decided in this action, directed the plaintiff to be called, and he was nonsuited.

A motion was made to set aside the nonsuit, and for a new trial.

VAN NESS, J. delivered the opinion of the court. The opinion I expressed, on the trial of this cause, that replevin lies only in the case of an unlawful distress, was a mistaken one. The passage to that effect, in Blackstone's Commentaries, 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 case 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. 28 b. and by Danby, J. in 2 Edw. IV. 16. and by Brian, J. in 6 Hen. VII. 9. and these dicta are cited as good law, in Bro. tit. Replevin, pl. 36. 39. and in Roll. Abr. tit. Replevin, B. The same rule was admitted, by the judges, in the case of Mason v. Dixon, (Jones's 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 Gilbert, Baron Comyns, 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. c. 5.) apply chiefly to cases of illegal distress; but there is nothing which confines the remedy to that particular injury.

If this question be 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.

Rule granted.

GALLOWAY v. BIRD.

COURT OF COMMON PLEAS. 1827.

4 Bingham 299.

REPLEVIN for taking and unjustly detaining Plaintiff's goods. Avowry, that Defendants were carriers and lightermen, and that one C. Bache was the consignor, and Plaintiff the consignee of the goods in question, which were delivered to Defendants, and came into their custody as such carriers, to be carried to the Plaintiff, with his knowledge and consent, and for reward therefore payable by C. Bache; that before the Plaintiff had any property in the goods, Defendants had given notice to Bache that they would detain all goods delivered to them, not only for the charges arising on such goods, but 'for all monies due to them on any other account from Bache; and that the Defendants detained the goods by virtue of a certain lien for a balance of 5431. 2s. due to them from Bache, having given notice to Bache that they claimed such lien.

Pleas, first, that before Plaintiff had any notice of the notice given to Bache, Plaintiff accepted a bill of exchange in part payment of the goods, which bill he afterwards paid.

Secondly, that at the time of the delivery of the goods Plaintiff had no notice of the notice alleged to have been given by Defendants to Bache.

Replication to first plea, that Defendants at the time they detained the goods had no notice from the Plaintiff that he had accepted the bill of exchange.

To the second the Defendants demurred generally. The Plaintiff joined in the demurrer to the second, and demurred generally to the replication to the first. Joinder.

The points argued were, first, whether the carriers of goods could, under the circumstances disclosed in the pleadings, detain goods from the consignee for a general lien in respect of debts due to them from the consignor.

Secondly, whether, supposing such a lien to exist as against the consignor, the fact of the consignees having paid for the goods would prevent its operating against him; and,

Thirdly, whether the action of replevin could be maintained under the circumstances mentioned in the pleading.

The Court pronounced no opinion upon the first two points; upon the third it was argued by

Wilde Serjt. that replevin lies wherever goods are unjustly taken; for which he cited Bull. N. P. tit. Replevin, Com. Dig. Replevin, A. B., Shannon v. Shannon, 1 Sch. & Lefr. 324, and the language of Lord Ellenborough in Dore v. Wilkinson, 2 Starkie, 288, recommending

the frequent use of the action. The taking here was wrongful, because the Defendants received the goods under a pretended contract to carry which they never meant to perform.

Taddy Serjt. contra. The goods were delivered under a contract to be carried for hire, and in such a case there is no wrongful taking, which alone can justify a replevin. Bac. Abr., Replevin and Avowry; Co. Lit. 145b., Stat. Marlbr. 52 H. 3. c. 21., West. 2. 13 Ed. 1. c. 2. s. 1. Willes, 673.

Cur. adv. vult.

BEST C. J. now delivered the judgment of the Court. This was an action of replevin, but the goods which were replevied had been delivered to the avowants upon a contract. The authorities all lay it down that replevin can only be maintained where goods are taken, not where they are delivered upon a contract; and this is clear also upon the form of pleading, which always is that the defendant "took and detained" the goods; the plea to which allegation is, non cepit. No instance can be found in the Digests or Abridgments of replevin having been brought upon a delivery under a contract. Our judgment therefore must be for the Defendants.

Judgment for the Defendants accordingly.1

MITCHELL v. ROBERTS.

SUPREME JUDICIAL COURT, NEW HAMPSHIRE. 1871.

50 New Hampshire 486.

REPLEVIN, by Grenville A. Mitchell & a. against Moses Roberts, for one horse, sleigh, harness, whip, and buffalo robe. Plea, non cepit, with a brief statement setting forth a seizure of the property by one Willis, a deputy sheriff, upon an execution in favor of the defendant against one Gordon; an advertisement of it to be sold at auction by the officer, and the taking it out of his possession on the day appointed for the sale by virtue of this writ of replevin, by means of which the sale was prevented; and alleging that the goods were the property of said Gordon, or Gordon & Mitchell, and not of the plaintiff.

1 See, accord, Mennie v. Blake, 6 E. & B. 842 (1856); Woodward v. Grand Trunk Ry. Co., 46 N. H. 524 (1866). Contra: Baker v. Fales, 16 Mass. 147 (1819) (interesting opinion); Stoughton v. Rappalo, 3 S. & R. 559 (Pa. 1818). By statute in many states the action of replevin has been extended to cover wrongful detention. See, e.g., N. H. Laws, 1873, c. 21, § 1 (now N. H. Rev. Laws 1942, c. 408, § 1): "When any goods or chattels are unlawfully taken or detained from the owner or person entitled to possession . . . such owner or other person may maintain replevin there for." See also Ill. Rev. Stat. 1945, c. 119, § 1.

May the defendant defeat the action by proving that title to the chattel is in a third person? See Sanford v. Millikin, 144 Mich. 311 (1906); Note, 27 Mich. L. Rev. 936 (1929).