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Replevin

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REPLEVIN. Replevin is an action by which where goods have been illegally distrained, or were charged to have been il legally detained, their owner could at once regain pos session of them. This was its peculiar characteristic. But before the plaintiff could get this writ of replevin, he was required to give security that he would prose cute the action against the alleged tortious taker to determine the right to the chattel, and if the right should be determined against hiin, the plaintiff, to re turn them to the taker, the defendant in the action. If the sheriff made return to this writ that the defendant had eloigned (removed afar off) the 'chattels, or that they were dead, or the like, then the plaintiff could have a capias in withernam (you shall take as a fur ther distress), authorizing the sheriff to seize so many of the defendant's cattle as were equivalent in value as those distrained. In his declaration the plaintiff alleged if he had recovered his chattels, that the de fendant had detained (detinitit) them, and could re cover damages only for the detention ; but if he had not recovered his chattels, then he alleged that the defendant detains (detinet) them, and he could re cover damages not only for the detention, but also for the value of the goods. These forms were called respectively, replevin in the detinuit, and in the de tinet; and if only a part of the goods were recovered the action was in the detinuit as to them and in the detinet as to the others.

Replevin can be supported only for taking a per sonal chattel, and not for an injury to things affixed to the freehold. The plaintiff must at the time of the tortious taking have had either the general property in the goods taken or a special property in them as bailee, pawnee, mortgagee, or the like. Replevin can not be supported if the plaintiff have not the right of immediate possession, and at the common law it lay only for an unlawful taking. In this action both par ties are considered as actors or plaintiffs. The de fendant, having distrained, is called upon to justify his action. This he does in his plea, which, as it con tains the defendant's justification and presents the real question to be tried, that is, the legality, of the distress, is essentially a declaration, and the plaintiff's replica tion a plea ; so that, in this action the pleadings are all postponed one step. Instead of justifying the de fendant may deny the taking of the chattels as alleged, or may claim property in them. The action is local and the declaration must have certainty of place and description, as well as the number and value of the goods taken. The judgment, when for the plaintiff, is that he recovers his damages and his costs ; when for the defendant, at common law, it was pro retorno habcndo (to have a return) to him of the goods taken in replevin.

action, plaintiff, alleged and taking