Replevin
REPLEVIN, (delivranee de namps, replegiatioy. Is the middle ages the performance of legal duties was enforced by taking the person, the lands, or the goods of the defaulter into the custody of the party authorised to enforce the per formance of such duties. When such a taking was effected, the party was said to be distrained (districtus, put under compulsion), by his body, his lands, or his goods, to do the act in respect of which he was supposed to have made default. [distress.]
Upon a distress being effected, the body, land, or goods. as the case might be, of the distrainee remained in the custody of the distrainor until the act for which the enforcing of tbe distress had been made was performed: unless ibe distrainee brought the question of the legality of tne takinr before a competent tribunal, in which case he might either await the result of his legal proceedings, or, if he was desirous of obtaining a more speedy liberation of the tbirif distrained, he might replevy it by giving a pledge or security for a replacing it in the custody of the distrainor iu the e\eo.t of the legal decision being in favour of the latter.
The aliened defaulter might contest the legality of the taking in an action of trespass. [trespass.] But in ibis forn of action he could recover damages only. He would not Le entitled to the liberation of his body, lands, or goods, as the case might be, pending the suit; nor indeed when the tut had terminated in his favour, could he by any proceedin; which could be resorted to in the action of trespass be relieved from the distress. The remedy by which a parti was to recover bis liberty or tbe property distrained, anil also damages for the temporary detention, was an action of replevin. Where the person of the plaintiff was taken, ha remedy was by an action of replevin in a peculiar form which, taking its denomination from the writ by which a was commenced, was called de homine replegiando. Th» proceeding was however surrounded by so many difficult!**, rendered perhaps indispensable by the neceasity of preventing criminals from using it as a means of evading justicr. that it has now become obsolete in England, parties entiiM to redress by the writ of homine replegiando preferring to obtain their discharge by the more speedy and surnmin process of habeas corpus, or, as it was formerly railed, a *rt of corpus cum causa. [habeas Corpus.] The great ma» of the cases of homine replegiando in the old law buui> arose upon the seizure and detention of persons whom ir« parties seizing claimed as their fugitive villeins [Vn.ua*' and this process was frequently resorted to in Jamaica aal other slave colonies. The seizing of the lands of a defacUe' by way of distress has long ceased to be practised.
Formerly not only lands but incorporeal hereditament* were the subjects of replevin, of which a remarkable insunr* occurred in the reign of Edward III. (Parliament Roiii. vol. i., 45.)
The third form of replevin, and the only one now in at* is replevin of goods, called in the old statutes replegian i* averiis, cattle (in law Latin, averia) being the species) of goods which usually formed the subject of a distress.
If the goods of a party were taken out of his possesses against his will, he was entitled at common law to sue out < writ of replegiari facias, by which the sheriff of the count? in which the goods were taken, or of the county in wtuea they were detained, was required to cause the goods to be replevied, i.e. restored to the owner upon his giving pledget for the prosecution pf his action, and also by statute pledges for the return of the goods to the distrainor in ease si iwtan should be adjudged. As the right of the party from wbcta the goods are taken to have the possession restored to tun by replevin, depends upon the property belonging to him— if the taker of the goods claim them as his own propertt, ife» power of the sheriff is suspended, until the party has su« out a writ de proprietate probanda, by which the sheriff a directed to summon a jury for the purpose of trying wboiLo the goods are the property of the plaintiff or of the defendant; and if they are found to be the property of the plaintiff, then to replevy them; if of the defendant, the plaintiff's claim to be restored to the possession of the goods remains in suspense until the termination of the action. A special action lies at the suit of the crown and the party aggrieved, for falsely claiming property in the goods distrained, and thereby preventing a replevin.
A replevin does not lie for goods taken in execution, or for goods seized for a debt to the crown. In a very intemperate speech, addressed by Hyde, afterwards Lord Clarendon, to the House of Lords, upon a charge against the barons of the exchequer, for enjoining the sheriffs of London not to execute a writ of replevin for goods seized by the officers of the custom-house for refusing to pay the subsidies of tonnage and poundage, he is stated to have said, in the course of his argument, 'We all know a replevin lies against the king, if the goods be (be not?) in his own hands.' (Rushworth, part 2, vol. ii., 1361.) Though this strange assertion has been regularly transcribed by succeeding writers, it appears to be altogether unfounded. The replevins sued out for goods seized in respect of tonnage and poundage would issue against the officers as for goods seized by them in respect of debts claimed to be due to the crown. But goods seized for the king's debts cannot be replevied without the special mandate of the king or of the barons of the Exchequer. Stdl less could replevin be brought in respect of goods in the actual possession of the king, and upon an allegation of their having been wrongfully taken by him.
Replevin does not lie for goods taken in a foreign country, though afterwards imported here.
If upon a distress taken by the superior landlord upon premises in the possession of an under-tenant, the mesne or intermediate tenant puts his cattle in the place of those distrained, as by law he was allowed to do, he might replevy the goods so substituted, though the latter were never distrained. Replevin lies notwithstanding an express agreement that the landlord shall be at liberty to distrain and hold the goods against pledges (that is, notwithstanding a tender of pledges) until the rent be paid; for goods cannot be made irreplevisable by the mere agreement of the parties.
Executors may maintain replevin for the goods of the testator taken in bis lifetime, and a husband may bring replevin alone without naming his wife, for the goods of the wife taken before the marriage; as the property in the goods passes to the executors, and to the husband respectively, notwithstanding the seizure and detention.
A person may in some cases support a replevin without being the owner of the goods, as where the plaintiff is the bailee of the goods taken. [bailment; Plkdgk.] The writ of replegiari facias did not, as in the case of most other writs, confer upon the sheriff a bare ministerial authority: it operated as a commission clothing the sheriff with authority to determine the legality of the distress in the county court, in which he presides judicially. Notwithstanding the facility thus afforded, the remedy by writ of replegiari facias, which must be sued out of the Court of Chancery, was attended with great inconvenience and delay at a period when the chancery followed the person of tbe king, and many weeks might elapse before the party could obtain tbe restoration of bis property. There existed also other difficulties connected with the execution of this writ. The inconvenience was felt as early as the time of Henry III., in whose reign it was provided by the statute of Marl bridge, passed in 1267, that if the cattle of any person be unjustly taken and detained, the sheriff, after complaint made to him thereof, may deliver them without hindrance or refusal of him who took the cattle. In 1554, with a view of making the delivery of distresses more expeditious, it was enacted by 1 and 2 Philip and Mary, c. 12, s. 3>' that every sheriff of shires, being no cities nor towns made shires, shall at his first county-day, or within two months next after he hath received his patent of his office of sheriffwick, depute, appoint, and proclaim in the shire-town within his bailiwick, four deputies at the least, dwelling not above twelve miles distant from one another; which deputies so appointed and proclaimed shall have authority in the sheriff's name to make replevies and deliverance of such distresses, in such manner and form as the sheriff may and ought to do.' The proceeding by writ of replevin does not seem to be affected by the Uniformity of Process Act (2 Will. IV., c. 39, s. 21), which directs that P. C, No. 1217.
the writs mentioned in that Act shall be the only writs for the commencement of personal actions in the cases to which such writs are applicable, inasmuch as none of these writs are capable of being applied to the objects to be accomplished by the writ of replevin.
The proceeding by plaint under the statute of Marlbridge, 52 Henry III., c. 21, has practically long superseded the proceedings by writ of replegiari facias. In numerous inferior courts jurisdiction is possessed, under charters from the crown, to hold pleas of replevin by plaint. By an act passed in 1284 (Westm. 2, c. 2), the sheriff is required, before he make deliverance of the distress, to take from the plaintiff pledges not only for the prosecution of the suit, but also for returning the cattle in the event of a return being adjudged. This statute is silent as to the amount in which security should be taken. For the purpose of fixing the extent of the responsibility of the pledges and of preventing vexatious replevins in cases of distress for rent, it was enacted in 1737 (by 11 Geo. II., c. 19, s. 23), that sheriffs and other officers having authority to grant replevin shall in every replevin of a distress for rent, take, in their own names, and before any deliverance is made of the distress, from the plaintiff and two responsible persons as sureties, a bond in double the value of the goods distrained (such value to be ascertained by the oath of one or more credible witness or witnesses not interested in the goods or distress, such oath to be administered by the person granting such replevin), with a condition for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained in case of a return being awarded. By this latter statute the sheriff or other officer granting the replevin is authorised to assign the replevin bond to the avowant (the party who took the distress in his own right), or to the person making cognizance (the party acknowledging the taking of the distress on behalf of some other person, and as his bailiff, for the term applied to any person undertaking this species of agency, the duly of taking distresses having been formerly part of the ordinary duties of the bailiffs of manors); and the assignee of the bond is thereby empowered to sue upon it in the superior courts, in the event of the condition of the bond not being performed.
Although the county court has jurisdiction over the matters in dispute in actions of replevin, whether the proceeding be by writ or by plaint, the usual course, after security has been taken and the property returned, is to remove the proceedings into the Court of Common Pleas. This is commonly effected by a writ of recordari facias loquelam, called familiarly by practitioners a re. fa. lo., whereby the sheriff is commanded that he cause the plaint to be recorded which is in his county court between A and B, of the cattle, goods, and chatties of A, said to be taken and unjustly detained, and that he have that record before the justices at Westminster under his seal and the seal of four knights of the county, of such as shall be present at the said recording, and that he give a day to the parties to be in court. This proceeding is evidently borrowed from the Norman practice of requiring the presence of four knights to constitute a record in certain cases, though in other cases other persons might be recordeurs [recorder], the supreme recordeur being tbe duke of Normandy himself (Grand (Joustunner), all whose courts therefore, whether in Normandy or in England, in which he was supposed to be present, were courts of record. If tbe plaint which was required to be removed was not in the county court, but in the court of the lord of a franchise, the writ directed the sheriff to go to the lord's court, taking with him four knights, and there to cause the plaint to be recorded. This particular form of re. fa. lo. is called an accedas ad curiam. In some cases, proceedings in replevin may be removed from the county court into the Common Pleas by writ of pone loquelam; and where such proceedings are depending in an inferior court of record, they may be removed into any of the three superior courts by writ of certiorari.
Upon the appearance of the parties in the Court of Common Pleas (or the removal may be into the Queen's Bench, and, if from an inferior court of record, into the Exchequer also), the plaintiff declares against the defendant for the taking of the goods and chattels of the plaintiff, at such a time and in such a place, and unjustly detaining them against sureties and pledges (that is, notwithstanding the plaintiff had offered security to perform the act required, in case it should be found that he was liable so to do), until they were replevied. This is the ordinary form, and it is called declaring in the delinuit. But if the goods have not been restored to the plaintiff, the declaration charges that he still detains them. This is called declaring in the detinet, in which the plaintiff claims damages large enough to cover tho whole value of the goods taken from him; whereas in replevin in the detinuit, the damages recoverable are for the taking and for the short detention, until the replevying, which, as the goods may be replevied immediately, are merely nominal, and a small amount to cover the expense of the replevin bond.
The declaration being delivered, and a rule to plead being given, and a demand of plea made, the defendant either confesses the action, or suffers judgment by default, or pleads or demurs to the declaration. In the first case, final judgment is entered for the sum confessed. In the second case, interlocutory judgment is signed, and a writ of inquiry issues to assess the amount of the damages which the plaintiff nas sustained by reason of the taking and detaining of his property. If the goods have been restored to the plaintiff, the damages will be measured by the inconvenience and the expense incurred in getting them back; if, as is seldom the case, they have not been restored, the amount of damages will include the value of the goods at the time of their being taken.
Thirdly, the defendant may plead or demur to the declaration. In replevin there is no general issue, properly so called, that is, a plea which puts the plaintiff upon proof of all the material allegations in the declaration. If the defendant plead non cepit, he admits that the goods belong to the plaintiff, and denies the taking only. If he plead that the goods do not belong to the plaintiff, he admits that he took and detained them. The allegation that the defendant detained the goods against sureties and pledges, is considered as a mere form, and not traversable. Therefore, although the action of replevin was given for the purpose of trying the validity of distresses, yet as no proof of any lender of security fur the performance of a duty distrained for can be required from the plaintiff, the action of replevin may, in effect, be maintained upon any species of wrongful taking; and in Ireland this form of action is not nnfrequently resorted to as a mode of trying a disputed right of property in goods. But where the taking was not wrongful, an action of replevin does not lie, as where the defendant acquired the possession by delivery from the plaintiff, although the possession has been wrongfully continued, for which injury the proper remedy is an action of detinue (Com., Dig., ' Replevin,' A. ); though even in the case of a bailment (consignor against consignee), Lord Redesdale, then chancellor of Ireland, refused to quash a writ of replevin.
In ordinary cases, the defendant avows in his own right, or makes cognizance, as bailiff to his employer, for rent, or for some other duty or cause, for which a distress is allowed by law [distress], in doing which he may set up any ground of distress, though differing from that expressed at the time when the distress was made.
Tne plaintiff may reply to the defendant's plea as in other cases [pleading]; but inasmuch as an avowant, or a person making cognizance, is not merely a defendant, but a party seeking to recover something, the plaintiff's answer to an avowry or cognizance, which is in the nature of a declaration for the right or duty withheld, is called a plea in bar to such avowry or cognizance; the defendant's answer to which plea or bar is called a replication.
The pleadings in replevin vary according to the nature of the claim which formed the subject of the distress, and the circumstances under which the plaintiff is enabled to meet such claim. (Com., Dig., 'Plead.,' (3 K); Selw., N. P., 'Replevin;' Wilkinson On Replevin.)
If upon issue joined, a verdict is found for the plaintiff, the jury usually assess the damages ; but if they omit to do so, a writ of inquiry issues to assess damages for the taking and detention, and also for the value of the goods, if it appear either by the pleading or by a suggestion by the plaintiff on the roll that the goods have perished or are still detained. But when the taking was lawful, and the detention only wrongful, no damages are given for the taking, as where goods are distrained damage feasant (wrongfully encumbering the defendant's property) and are impounded after tender of sufficient amends. Upon a judgment for the plaintiffon demurrer, a writ of inquiry issues to assess the damages, framed, as in other cases, with reference to the state of the record. Where there is judgment for the defendant upon verdict or demurrer, or the plaintiff is nonsuited, the judgment directs that the defend ant shall hats the goods restored to him without being again subject to being replevied, which is called a return irreplevisable; and by 17 Car. II., c. ■7,on distress for rent, if the plaintiff in replevin by plaint, or writ depending in an? court at Westminster, be nonsuited before issue joined, U* defendant making a suggestion in nature of an avowry or cognizance for such rent, the court is directed, upon h prayer, to award a writ to inquire what rent is in a;rear, and tho value of the goods and cattle distrained; aad on the return of the inquisition the defendant is to hate judgment to recover the arrears of rent, if the goods, &». distrained amount to that value, otherwise to the value ot the distress, with full costs; and if the plaintiff be noosuited after avowry or cognizance, and issue joined, or » verdict be for the defendant, the jury are to inquire the amount of rent in arrear, and the value of the distress; ani'. if judgment be for the defendant on demurrer, the court a to award a writ to inquire the value of the distress, and tl>defendant is to have judgment for the arrears mentioned ir. the avowry or cognizance, if the distress amount to so much, otherwise to the value of the distress, and his costs.
If upon a replevin, either by writ or plaint, or upon t writ of retorno habendo after judgment, the sheriff returnthat the cattle, &c. are driven away (eloigned, elongata.) m that he cannot replevy them, a writ may issue commanding the sheriff to make reprisals by taking the cattle, &c. of ib» distrainor, and to detain them until he is able to replen the cattle, Sec. of the distrainee. This process, which is no* nearly obsolete, was called a capias in withernam, or ■ capias by way of counter-taking, from trither (against; ir. German, wider) and nam, a taking or distress. A speeu: action of trespass also lies for removing a distress so that .'. cannot be replevied. This latter offence was formerly rall<>: a 'vee,' or'vetitum namium,' by which terra is to be ooderstood, not, as might be supposed, a forbidden distress, bu' a distress forbidden or refused to be replevie 1.' (2 Intt., 140. If after goods have been replevied, and before the soil has been decided, the defendant makes another distress for tho same cause, such second distress is called a recaprin; and the course is to sue out a special writ for the restoration of the goods and for tho punishment of the recapur . since, whether the first taking was right or wrong, the defendant is not justified in thus anticipating the judgment e' the court. It is not material whether the second taking; t> of the same goods or of other goods, provided they before to the same party, and arc taken for the same cause: but: the landlord distrain the goods of A, who replevies, an' afterwards, finding the goods of B upon the land, he distrain them for the same rent, no writ of recaption lies. B emi only replevy or bring an action of trespass or trover.
At common law, if the plaintiff was nonsuited, allhou^t the defendant became entitled to a return of the goods, j*< the judgment was not that the return should be irreplertuble, as in a judgment upon a verdict where the right ha4 been tried. The plaintiff might have again sued oat > replevin, and so after several successive nonsuits. To pc an end to this vexatious proceeding, the statute of We&tsi II., c. 2, gave the plaintiffs writ of second deliverance instead of a new replevin, in which, if the plaintiff in art) manner fail in his suit, the defendant will have judgment for a return irreplevisable. In other respects tin- procord ings in the action of second deliverance are similar to tho* in the action of replevin.
Note - this article incorporates content from The Penny Cyclopaedia of the Society for the Diffusion of Useful Knowledge (1840)
