An action to recover personal property said or claimed to be unlawfully taken. 2) The writ or procedure of such an action.
It will be proper to consider, 1. For what property this action will lie. 2. What interest the plaintiff must have in the same. 3. For what injury. 4. The pleadings. 5. The judgment.
- 1. To support replevin, the property affected must be a personal chattel, and not an injury to the freehold, or to any matter which is annexed to it nor for anything which has been turned into a chattel by having been separated from it by the defendant, and carried away at one and the same time nor for writings which concern the realty. 1 Brownl. 168.
The chattel also must possess indicia or ear-marks, by which it may be distinguished from all others of the same description; otherwise the plaintiff would be demanding of the law what it has not in its power to bestow; replevin for loose money cannot, therefore, be maintained; but it may be supported for money tied up in a bag, and taken in that state from the plaintiff.
- 2. The plaintiff, at the time of the caption, must have been possessed, or, which amounts to the same thing, have had an absolute property in and be entitled to the possession of the chattel, or it could not have been taken from him. He must, in other words, have had a general property, or a special property, as the bailee of the goods. His right to the possession must also be continued down to the time of judgment pronounced, otherwise he has no claim to the restoration of the property. It has however, been doubted whether on a more naked tailment for safe keeping, the bailee can maintain replevin.
- 3. This action lies to recover any goods which have been illegally taken. The primary object of this action, is to recover back the chattel itself, and damages for taking and detaining it are consequent on the recovery. When the properly has been restored this action cannot, therefore, be maintained. But the chattel is considered as detained, not withstanding the defendant may have destroyed it before the suit was commenced; for he cannot take advantage of his own wrong.
- 4. This being a local action, the declaration requires certainty in the description of the place where the distress was taken. But it has been held in Pennsylvania, that the declaration is sufficient, if the taking is laid to be in the county. The strictness which formerly prevailed on this subject, has been relaxed. When the distress has been taken for rent, the defendant usually avows or makes cognizance, in order to obtain a return of the goods to which avowry or cognizance the plaintiff pleads in bar, or the defendant may, in proper cases, plead non cepit, cepit in alio loco, guilty.