A Practical Treatise on the Law of Replevin: As Administered by the Courts of the United States, Arranged in Three Parts to Facilitate Ready Reference

Joseph Elliott Cobbey

J.E. Cobbey, 1890 - 933 pages

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Title Page

Table of Contents

Index

CHAPTER I	1

CHAPTER II	8

Allegations of value are not binding on the trial	14

Replevin as used in America	19

Scope of the investigation	25

creditor	27

Ratification cannot be inferred by lapse of time 412	28

When right to possession alone sufficient when plaintif must have	30

Owner should move to reclaim his property as soon as he knows	395

Replevin can be maintained for part of mass if it can be identified	401

Articles that can be identified can be repleviedAs to them it	407

Defenses generally 783	414

Remedy by intervention not exclusive 790	420

The sameExecutionConstructive possession	437

Improper defenseExamples 829	440

Claim of damage needs no reply 842	447

Where the tenancy is for a definite time replevin will not lie until	31

469	33

DistressHistory	37

Money paid a security company to furnish bonds cannot be allowed	42

To authorize a distress must be an actual demise	43

ant 230	44

xlix	45

Venire how laid in a replevin of a distress	49

CHAPTER VI	50

232	51

The sameNegative illustrations	55

WHO MAY MAINTAIN REPLEVIN	67

An officer may replevy from another officer or from a receiptor	68

471	83

CHAPTER VIII	85

As against a wrongdoer prior possession alone sufficient	90

Part payment no defense to replevin by mortgagee 183	91

Right to the possession indispensable to maintain the action	94

Where no default has been made 198	97

An equitable title alone will not support replevin	100

Bailee may replevy from a stranger to the title 210	103

Possession parted with conditionallyBailor	106

Effect of sale by one partner of his interest 226	108

Where title is reserved by seller his interest is sufficient to support	112

Statute of fraudsTitle based on insufficient	118

244	121

Title based on an unexecuted or conditional contract	124

Where it is impossible to restore will not be required	129

To the right of property plaintiff must add the right of possession	130

Either a general or special property is sufficient	133

Failure of vendee may justify a rescission	135

One of several defendants in an execution	139

Does not lie by vendee to enforce contract of sale	141

Need not allege his official character in petition 292	142

One who has lost possession wrongfully	145

A stranger to the writ of seizure may replevy 301	149

An administrator may replevy personal property of his intestate	151

Where property is wrongfully taken from a lienholder he may	157

A finder of property has a lien on it for the reward offered	163

May be brought where property is or where defendant resides 327	164

Illegality of the tax no ground for replevin 336	170

after he has had possession	189

The same Proper judgment in such a case	195

Rights of the holder of a colorable title merely 387	199

strangerDuty of bailee	211

It lies for goods obtained by the fraudulent use of the process of	215

285	216

A bailee of property cannot dispute the title of his bailor	217

A purchaser of stolen property cannot maintain replevin against	221

The sameBoth owners can join and replevy	223

286	225

Joint owners must join as plaintiffs 429	227

A tenant in common cannot replevy from an officer who has taken	229

Where by agreement one is to have exclusive possession replevin	235

Possession of goods by mistakeLien 469	238

475	239

When one joint owner may sever the property by his own act with	241

Where title reserved vendor may replevy from assignee	247

Title of record does not excuse 460	249

Use restricted to certain limits	253

287	262

CHAPTER XXII	277

Requisites of affidavit 583	278

Affidavit must allege the property was not taken for tax etc 534	285

The same	292

There is a distinction between a good cause of action defectively	299

A purchaser of property so taken is not protected from replevin 303	303

Total lack of affidavit cannot be cured by amendment	305

Attached property may be replevied	309

Lies for powder condemned by city officers	315

Rule in regard to replevin of attached property 624	317

Replevin lies against a receiver where he takes the wrong property	321

The writ is under the control of plaintiff 625	327

Replevin for property illegally seized may be brought in any court	337

Payment of tax after seizure no ground for replevin	343

The same Illustrations	349

CHAPTER XXV	351

circumstances	353

Statutory bond is indispensable 675	357

The general rule	359

Where the intention of the parties make a building personalty	365

The same	371

While the replevin suit is pending the property cannot be seized	374

Replevin does not lie by one of two claimants of government land	377

The same in case of trespasser	383

WHERE THE GOOODS HAVE BEEN CHANGED IN FORM OR ENHANCED IN VALUE	389

The plea or answer of defendant 739	391

Rule where property has been returned to defendant and plaintiff	448

Excessive damages must not be allowed for use 889	449

Damages not the subject of an independent action 847	453

Jury cannot give more than is claimed in the pleadings 861	461

Where successful party has become repossessed his damages	467

But a contrary rule has been laid down	473

The purpose for which property is used should be considered in esti	477

Proof of When made	479

In case of stocks is the value on day of trial 901	483

Acts and notice equivalent to demandIntervenor	485

Action by mortgagee vs mortgagor	491

General rule of damages where property has been changed in form 909	493

When demand of an officer proceeding under a writ of attachment	497

Expenses of taking and removing property 923	501

Fraud by vendeeAttaching or other creditorNo demand neces	503

Actual malice must be shown 928	507

Value should be assessed as of time of trial 938	519

Rule where produce is shipped to a distant market 946	526

Where the taking was with malice 956	532

Cannot recover for use or detention in addition to value 961	535

Prospective profits are too remote and are not an element of dam	541

CHAPTER XXXII	547

Declarations of plaintiff not admissible in his favor 986	553

Evidence admissible under non detinet 1004	563

As to matters accruing after a suit 1012	570

The same 1020	576

When no conflict court may direct verdict 1026	580

Possession evidence of title 1939	586

CHAPTER XXXIV	593

Where the successful party claims less than a full interest the value	613

Finding partly for defendant and partly for plaintiff proper when 1082	619

If there is a total lack of description the writ is void	621

The judgment must speak as to all the parties 1102	622

Judgment may be made to conform to verdict by motion 1089	625

Writ may be amended on trial as to value	627

The officer should serve the property first	633

Measure of damages where officer has lost the replevin bond	639

Nor if he has acquired possession during the litigation 1124	644

And trover will not lie against the officer	645

An officer may have judgment for a sum larger than the value	650

A replevin writ cannot be executed on Sunday	651

Substitution of defendants 1152	656

Secreting or driving property away is not contempt	657

BarEstoppelFormer replevin 1163	662

An officer is liable on his official bond for the judgment against	668

CHAPTER XXXVII	672

Court may require a statutory bond	677

CHAPTER XXXVIII	681

Bond need not be under seal	683

But if defendant claim further relief the plaintiff should be heard	687

If bond good when taken it is sufficient	689

The action should not be dismissed on slight grounds 1211	690

Objection how madeMust be before trial	695

Judgment in trial of the right of property has the same effect 1220	696

Giving redelivery bond waives what defenses	701

It may be brought against the plaintiff 1233	702

Joint parties should join in proceedings to vacate or modify	704

Defense cannot be changed upon appeal 1245	710

Title during suitRedelivery bondSecond replevin	715

Effect of sale made by party in possession	721

Insufficiency of description is waived by pleading	727

The nature of these pleas	733

The plea of cepit in año loco	741

But if defendant in replevin take advantage of such error to dis	742

PROPER PARTIES	744

The denials of the answer must be full and explicit	747

CHAPTER XLV	751

Evidence of matter in estoppel	753

Sure ties are bound by the judgment rendered in the replevin action 1314	757

Answer should allege amount levy and validity of writ	759

Where there are several defendants	765

Contribution and subrogation 1336	769

Illustrations of sufficient answers	771

In justice court the damages are not limited by the jurisdiction	775

Defendant cannot anticipate special title not pleaded by plaintif	777

CHAPTER XLVII	787

Recoupment and setoff not allowed in replevin	791

Defense cannot be changed after suit brought	797

Justification under a writ is a good defense	803

A party in his suit on the bond must occupy a position consistent	806

Where defendant pleads a former adjudication he must show all	811

So only matters arising out of the replevin suit can be urged	849

Where property is not taken the rule is ordinarily the value with	880

Interest not always a proper measure of damages	886

Loss from interruption of business and machinery lying idle 919	891

gross 1064	931

Copyright

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Common terms and phrases

15 Mass action of replevin Allen assignee attachment bailee bailment Barb Blackf bona fide purchaser Bradw bring replevin brought chattels claim co-tenant common law Conn contract court creditors crop Cush damages debt debtor defendant delivered delivery demand detention detinue East Saginaw entitled erty execution exempt property fraud fraudulent gagee Gray held Hill interest Iowa Johns joint owner Jones land levied lien lienholder maintain replevin therefor Miss mort mortgage mortgagor officer partner party payment personal property Pick plaintiff plevin posses prop property seized purchaser realty recover remedy Replevin lies replevin suit replevin will lie rescission right of possession rule seizure sell sheriff sion Smith sold special property statute stranger sufficient support replevin sustain replevin tain replevin taken taking tenant in common tender Tenn thereof tion trespass trover true owner vendee vendor Wend writ wrongful wrongfully

Popular passages

Page 267 - The plaintiff, in an action to recover the possession of personal property, may at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property as provided in this chapter.‎

Appears in 91 books from 1848-1998

Page 482 - ... if the property has been delivered to the plaintiff, and the defendant claim a return thereof. judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.‎

Appears in 146 books from 1777-2004

Page 474 - It is an elementary principle in the law of all civilized communities that no man can be deprived of his property except by his own voluntary act or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking.‎

Appears in 30 books from 1850-2004

Page 353 - ... to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages...‎

Appears in 65 books from 1792-1988

Page 650 - In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.‎

Appears in 168 books from 1803-1994

Page 476 - The acknowledged principle of the civil law is that a willful wrongdoer acquires no property in the goods of another either by the wrongful taking, or by any change wrought in them by his labor or skill, however great that change may be.‎

Appears in 23 books from 1850-1992

Page 475 - There is great confusion in the books upon the question what constitutes change of identity. In one case, (5 Hen. 7, fol. 15,) it is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection. But this in many cases is by no means the best evidence of identity; and the examples put by way of illustration serve rather to disprove than to establish the rule. The court say that if grain be made into malt, it can not be reclaimed by the owner,...‎

Appears in 15 books from 1850-1954

Page 477 - The civil law in such a case would have required him who retained the whole of the mingled goods to account to the other for his share, (Just.‎

Appears in 18 books from 1850-1954

Page 475 - They agree in another respect, to wit, that if the chattel wrongfully taken, afterwards come into the hands of an innocent holder who believing himself to be the owner, converts the chattel into a thing of different species so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind the change in the species of the chattel is not an intentional wrong to the...‎

Appears in 27 books from 1850-2004

Page 167 - So much depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all cases.‎

Appears in 49 books from 1837-1982

Bibliographic information

Title	A Practical Treatise on the Law of Replevin: As Administered by the Courts of the United States, Arranged in Three Parts to Facilitate Ready Reference
Author	Joseph Elliott Cobbey
Publisher	J.E. Cobbey, 1890
Length	933 pages

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