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Bouvier's Law Dictionary, Revised 6th Edition (1856)

REPLEVIN, remedies. The name of an action for the recovery of goods and
chattels.
2. 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.
3.-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; 4 T. R. 504; 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; 2 Watts, R. 126; 3 S. & R. 509 6 S. & R. 4761; 10
S. & R. 114; 6 Greenl. R. 427; nor for writings which concern the realty. 1
Brownl. 168.
4. 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 Mod. R. 61. Vide 1 Dall. 157; 6 Binn. 2; 3 Serg. & Rawle,
562; 2 P. A. Browne's R. 160; Addis. R. 134; 10 Serg. & Rawle, 114; 4 Dall.
Appx. i.; 2 Watt's R. 126; 2 Rawle's R. 423.
5.-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.
Co. Litt. 145, b. It has however, been doubted whether on a more naked
tailment for safe keeping, the bailee can maintain replevin. 1 John. R. 380;
3 Serg. & Rawle, 20.
6.-3. This action lies to recover any goods which have been illegally
taken. 7 John R. 140; 5 Mass. R. 283; 14 John. R. 87; 1 Dall. R. 157; 6
Binn. R. 2; 3 Serg. & Rawle, 562; Addis. R. 134; 1 Mason, 319; 2 Fairf. 28.
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. 1 W.
& S. 513; 20 Wend. 172; 3 Shepl. 20. When the properly has been restored
this action cannot, therefore, be maintained. But the chattel is considered
as detained, notwithstanding the defendant may have destroyed it before the
suit was commenced; for he cannot take advantage of his own wrong.
7.-4. This being a local action, the declaration requires certainty in
the description of the place where the distress was taken. 2 Chit: Pl. 411,
412; 10 John. R. 53. But it has been held in Pennsylvania, that the
declaration is sufficient, if the taking is laid to be in the county. 1 P.
A. Browne's Rep. 60. The strictness which formerly prevailed on this
subject, has been relaxed. 2 Saund. 74, b. 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. 1 Chit. Pl. 490, 491.
8.-5. As to the judgment, Vide article Judgment in Replevin. Vide,
generally, Bac. Ab. h.t.; 1 Saund. 347, n. 1; 2 Sell. Pr. 153; Doct. Pl.
414; Com. Dig. h.t.; Dane's Ab. h.t.; Petersd. Ab. h.t.; 18 Vin. Ab. 576;
Yelv. 146, a; 1 Chit., Pl. 157; Ham. N. P. ch. 3, p. 372 to 498; Amer. Dig.
h.t.; Harr. Dig. h.t.; Bouv. Inst. Index, h.t. As to the evidence required
in replevin, see Roscoe's Civ. Ev. 353. Vide, also, article Detinuit.

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