Replevin, a personal action to recover possession in specie of goods unlawfully taken (generally, but not exclusively, applicable to the taking of goods distrained for rent), by contesting the validity of the seizure, whereas, if the owner prefer to have damages instead, the validity may be contested by action of trespass or unlawful distress. The word means a re-delivery to the owner of the pledge or thing taken in distress. It is re-delivered to him by the registrar of the county court of the district within which it was taken, upon his undertaking and giving security to try the validity of the distress or taking, in an action of replevin to be forthwith commenced by him against the distrainer, and prosecuted with effect and without delay either in the County Court or in the High Court, and to restore it if the right be adjudged against him; after which the distrainer may keep it in distraint subject to the law of distress.
It is a general rule that whoever brings replevin ought to have the property of the goods either general or special in him at the time of the taking, and it lies against him who takes the goods and also against him who commands the taking, or against both. Whatever may be distrained may be replevied.
In cases of distress for rent the replevy should be made before the expiration of five days (or fifteen, if s. 6 of the Law of Distress Amendment Act, 1888, applies) after the distress, otherwise the distrainer may sell the goods; though, indeed, they may be replevied at any time before they have been sold, see Jacob v. King, (1814) 5 Taunt. 451.
An action for replevin may be commenced in the High Court, and if the replevisor wish to proceed in that court, he must at the time of the replevying give security sufficient to cover the alleged rent or damage for which the distress is made, and the probable costs of the cause, conditioned to commence and prosecute an action of replevin in that court, a week from date, and to prove that he had ground to believe that the title to some hereditament, or to some toll, etc., was in question, or that such rent or damage exceeded 20l., and to make return of the goods, if return adjudged. In the County Court the action must be commenced within a month. (County Courts Act, 1934, ss. 101-103)
Avowry and Cognizance.--In avowries and cognizances for rent was set forth, as in a statement of claim, the nature and merits of the defendant's case, to show that the distress taken by him was lawful, and to entitle him to a judgment de retorno habendo. The technical difference between an avowry and cognizance was this: where the action was against the principal or landlord, he made avowry--that is, he avowed taking the distress in his own right; where, on the other hand, it was against the bailiff or servant, he made cognizance--that is, he acknowledged the taking in right of the principal or landlord; and where it was against both, the one avowed and the other made cognizance.
The action of replevin is now rarely brought, it being usually more convenient to sue for damages for illegal distress. Consult Bullen and Leake, Prec. of Plead., 7th Edn. pp. 393, 816.
Replevin, is a remedy ground and granted upon a distress, being a re-deliverance of the thing distained to remain with the first possessor, on security or pledges given by him to try the right with the distrainer, and to answer him in a course of law, the Pocket Lawyer and Family Conveyancer 105, 3rd Edn., 1833.
Replevin, lies, where specific personal property has been wrongfully taken and 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 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, Handbook of Common-Law Pleading, at 120 (Heneroy Wintrop Ballantine, 3rd Edn., 1923) by Benjamin J. Shipman.
Means 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, Black's Law Dictionary, 7th Edn., p. 1302.