This is a type of vicontiel (County or Sheriff related) writ that is founded on a Tort.
Definition of Replevin:
“1. An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for & holds the property until the court decides who owns it. — Also termed claim and delivery. 2. A writ obtained from a court authorizing the retaking of personal property wrongfully taken or detained. — Also termed (in sense 2) writ of replevin. ”[1]
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.”[2]
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.”[3]
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.”[4]
Types of Replevin:
- Personal Replevin: “(1844) At common law, an action to replevy a person out of prison or out of another’s custody. Personal replevin has been largely superseded by the writ of habeas corpus as a means of investigating the legality of an imprisonment. See HABEAS CORPUS.”
- Replevin in the Cepit: “(18c) An action for the repossession of property that is both wrongfully taken & wrongfully detained. Also termed replevin in cepit.”
- Replevin in the Detinet: “(18c) An action for the repossession of property that is rightfully taken but wrongfully detained. – Also termed replevin in detinet.”
Excerpt from J.E. Cobbe’s A Practical Treatise on the Law of Replevin:
“In England the action in the progress of its development assumed three forms: Cepit, from the Latin capio, ‘to take,’ where the action was simply for the wrongful taking; and detinet, from de and teneo, ‘to hold,’ where the action was for a wrongful holding. If the goods were not taken on the writ by the officer, the action proceeded as replevin in the detinet, but if the goods were taken, the action was called replevin in the detinuit; the first meaning ‘he detains,’ the second ‘he detained.’ The action in the detinet has long fallen into disuse, and is never brought unless the distrainer has eloigned the goods so that they cannot be got at to make replevin.”[5]
Definition of DETINUIT:
“[Latin ‘he has detained’] (of property) the former condition of being withheld. An action is said to be in the detinuit when the plaintiff has already recovered possession of the property claimed under a writ of replevin.”
Definition of REPLIVISOR:
“(1837) The plaintiff in a replevin action.”
Definition of REPLEVY:
“vb. (16c) 1. To recover possession of (goods) by Writ of Replevin. 2. To recover (goods) by replevin. 3. Archaic. To bail (a prisoner).”
Definition of 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 & crimes. 2. International law Rare. As a consequence of a crime or tort <because they were counterfeit, the goods were seized & condemned ex delicto>.”
Definition of IN DELICTO:
“[Latin] In fault.”
Definition of IN PARI DELICTO:
“adv. [Latin ‘in equal fault’] Equally at fault <the court denied relief because both parties stood in pari delicto>.”
Definition of EX CONTRACTU:
“[Latin ‘from a contract] (17c.) Arising from a contract <action ex contractu>.”
Definition of 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.”
References:
[1]: All definitions from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[2]: Excerpt from J.E. Cobbey’s A Practical Treatise on the Law of Replevin:
[3]: Benjamin j. Shipman, Handbook of Common-Law Pleading § 49, at 120 (Hentry Winthrop Ballantine Ed., 3rd Ed. 1923)
[4]: 1 Dan B. Dobbs, Law of Remedies § 5. 17(1), at 917 (2nd Ed. 1993)