replevin – repossess personal property wrongfully taken, or persons wrongfully detained, imprisoned, or encumbered (i.e. probation)

     This page is continued from Civil Law Self-Help >>>> Section 5: Commence a Civil Action >>>> Types of Actions >>>> The 11 Historical Common-Law Forms of Action >>>> Forms of Actions to Recover Wrongfully Imprisoned, Detained, or Withheld Persons or Property:

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replevin:

1. An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it. — aka claim and delivery. 

2. A writ obtained from a court authorizing the retaking of personal property wrongfully taken or detained. — aka (in sense 2) writ of replevin. [1]

1. An action in which the owner or one who has a general or special property in a thing taken or detained by another seeks to recover possession in specie, and sometimes the recovery of damages as an incident of the cause. 46 Am J1st Replev § 2.

The writ authorizing the seizure of the property by the officer to whom it is directed.  In some jurisdictions a written requisition subscribed by the plaintiff’s attorney directing the sheriff to seize certain described property. 46 Am J1st Replev § 79. [2]

1. An action by which the owner of personal property is taken or detained by another may recover possession of it.

2. The name of the writ issued by a court in an action of replevin authorizing the sheriff to seize the property that is the subject of the action pending the outcome of the litigation. [3]

    Excerpt from J.E. Cobbey’s A Practical Treatise on the Law of Replevin:

    “Replevin consists in the redelivery of the goods taken to the owner; the name of one of the common-law actions, the distinguishing features of which are that it is brought to obtain possession of specific chattel property, & is prosecuted by the provisional seizure & delivery to the plaintiff of the thing in suit.  Replevin is a personal action ex delicto brought to recover possession of goods unlawfully taken, the validity of which taking it is the regular mode of contesting.[4]

    Excerpt from Benjamin j. Shipman’s Handbook of Common-Law Pleading:

    “The action of replevin lies, where specific personal property has been wrongfully taken & is wrongfully detained, to recover possession of the property, together with damages for its detention. To support the action it is necessary

a.) That the property shall be personal.

b.) That the plaintiff, at the time of suit, shall be entitled to the immediate possession.

c.) That (at common law) the defendant shall have wrongfully taken the property (‘replevin in the cepit’). But, by statute in most states, the action will now also lie where the property is wrongfully detained, though it was lawfully obtained in the first instance (‘replevin in the detinet’).

d.) that the property shall be wrongfully detained by the defendant at the time of suit.[5]

     Excerpt from Dan B. Dobbs’ Law of Remedies:

    “In rare cases, the plaintiff might seek equitable relief to secure return of a chattel. More commonly, the claim for recovery of the chattel was pursued at common law under forms of action, such as Detinue or Replevin. American statutes or court rules tracked the common law generally, referring to the recovery variously as replevin, detinue, claim-&-delivery, or sequestration. The statutes usually allowed the plaintiff to recover the disputed chattel before trial, though this is now subject to constitutional limits which have led to procedural revisions in many of the statutes.[6]

Related Terms:

personal property – any movable or intangible thing that is subject to ownership and not classified as real property: i.e. money, goods, chattels, movables, a right of action, evidence of debt, stock, bond, mortgages.

Various Forms of the Term “Replevin”:

replevyvb. (16c) 1. To recover possession of (goods) by writ of replevin.  2. To recover (goods) by replevin.  3. Archaic. To bail (a prisoner). [1]  1. To secure the possession of personal property by means of an action of replevin. [2]  1. To secure the possession of personal property by replevin. [3]

repleviable – Subject to an action of replevin; capable of being replevined.

replevisable – Capable of being recovered by an action of replevin.

replevish -. To replevin. [2]

replevisor (1837) The plaintiff in a replevin action. [1] The plaintiff in an action of replevin.

replegiare (ré-ple-ji-a’re) 1. To receive back by way of pledge; to replevin.
See de replegiare. [2]

replegiare de averiis (ré-ple-ji-a’re dé a-ve’ri-is) A writ which lay to replevin cattle which had been taken by distress.

Replegiare est, rem apud alium detentam cautione legitima interposita, redimere (re-ple-ji-a’re est, rem a’pud a’li-um de-ten’tam ka-she-o’ne le-ji’ti-ma inter-po’zi-ta, re-di’me-re) To replevin is to redeem with lawful security, a thing detained by another.  See 3 Bl Comm 146.

replegiari facias (re-ple-ji-a’ri fa’she-as) “That you cause to be replevied”: — a writ which issued out of Chancery, commanding the sheriff to deliver distrained goods to their owner. See 3 Bl Comm 146.

replevin bond – The bond required of the plaintiff in an action in replevin in obtaining a writ or requisition for the seizure of the property by an officer during the course of the proceeding and before judgment in the action, conditioned for the prosecution of the action, for the return of the property if return thereof is adjudged, and for the payment of such sum as may for any cause be recovered in the action against the plaintiff, the bond being primarily for the protection of the defendant in the event the plaintiff does not prevail. 46 Am J1st Replev § 75. [2]  1. A bond required of the plaintiff in an action of replevin. The bond is primarily for the defendant’s protection if the plaintiff does not prevail in the action; it guarantees that the property will be returned to the defendant in the condition it was in when it was removed by the sheriff. [3]

replevy bond – A form of bond given upon obtaining the release of attached property from the custody of the officer who made the levy. 6 Am J2d Attach § 523.
See delivery bond. [2]

     See writ of replevin.  See also self-help; sequestration. [3]

Types of Replevin:

personal replevin – a historical term for an action to replevy a person out of prison or out of another’s custody; replaced by the writ of habeas corpus.

  • writ of habeas corpus – command that a prisoner (or detainee or person on probation) be brought before the court to challenge the legality of their custody and demand their release. — aka great writ.

replevin in the cepit – an action for the repossession of property wrongfully taken and wrongfully detained. — aka replevin in cepit.

replevin in the detinet – an action for the repossession of property rightfully taken but wrongfully detained. — aka replevin in detinet. [1]

replevin in the detinuit – an action for damages resulting from the wrongful taking and detention of goods that have since been returned to the owner.

 

ex delicto adj. [Latin “from a wrong”] 1. Arising from a crime or tort <action ex delicto>  Although ex delicto refers most commonly to a tort in modern usage, it referred historically to both torts and crimes.  2. International law Rare. As a consequence of a crime or tort. <because they were counterfeit, the goods were seized & condemned ex delicto>.

in delicto[Latin] In fault.

in pari delicto adv. [Latin ‘in equal fault’] Equally at fault. <the court denied relief because both parties stood in pari delicto>.

ex contractu [Latin ‘from a contract] (17c.) Arising from a contract.<action ex contractu>.

avowry n. Common-law pleading. In an answer to replevin action, an acknowledgment that one has taken property, together with a justification for that taking <the defendant’s avowry was based on alleged damage to the property by the plaintiff>. COGNIZANCE — avow, vb. [1]

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[5]: Benjamin j. Shipman, Handbook of Common-Law Pleading § 49, at 120 (Hentry Winthrop Ballantine Ed., 3rd Ed. 1923)

[6]: 1 Dan B. Dobbs, Law of Remedies § 5. 17(1), at 917 (2nd Ed. 1993)

[7]: J.E. Cobbe’s A Practical Treatise on the Law of Replevin 4 (2d ed. 1960) 

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