Replevin
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Replevin is an Anglo-French law term (derived from repletir, to replevy). It signifies the recovery by a person of goods unlawfully taken out of his possession, by means of a special form of legal process. This falls into two divisions:
- the replevy, the steps which the owner takes to secure the physical possession of the goods, by giving security for prosecuting the action and for the return of the goods if the case goes against him
- the action of replevin itself. At common law, the ordinary action for the recovery of goods wrongfully taken would be one of detinue; but no means of immediate recovery liable to be seized.
The French law is in force in Mauritius, and has been reproduced in substance in the Civil Codes of Quebec (arts. 2005 et seq.) and St Lucia (arts. 1888 et seq.). There are analogous provisions in the Spanish Civil Code (art. 1922). The subject of privileges and hypothecs is regulated in Belgium by a special law of December 16, 1851; and in Germany by ss. ff13 et seq. of the Civil Code.
See, e.g., New South Wales (the consolidating Landlord and Tenant Act 1899); Newfoundland (Act 4 of 1899); Ontario (Act I of 1902, S. 22, giving a tenant five days for tender of rent and expenses after distress); Jamaica (Law 17 of 1900, certification of landlords bailiffs); Queensland (Act 15 of 1904).
Replevin is an action of civil law not criminal law; therefore, due to the differing burden of proof, a defendant found not guilty of criminal theft may be nevertheless required to return the disputed item or items in civil court.
Replevin does not provide compensation for any monetary loss arising from the loss of use of some income-producing property item. Note also that replevin involves return of an actual specific item or items, not monetary compensation for loss. Thus, it would not normally be used in a case regarding a sum of money, as distinct from the loss of a rare coin, for instance, where the return of the actual coin itself was at issue. In occasional cases of no particular numismatic interest, however, e.g. a bag of money whose contents have not yet been counted, an action may be filed to recover the actual coins and/or bills in question if they are still together.
It is evident that the question of replevin becomes moot should the item in question no longer exist as an entity, i.e. if it is destroyed, or in the case of a bag of money, for instance, if the money has been spent. For this reason, the item is normally seized by the court when the action is filed and held until the decision is reached, in order to prevent the waste of a legal action over a nonexistent object and, further, to ensure that the item in question is not destroyed, spent, etc. during the duration of the action. This can be used to force a settlement from the defendant, just or unjust, as he or she is deprived of the use of the disputed object for the duration of the action; if this results in a financial loss, the defendant may find it advantageous to merely pay a relatively small settlement and have the item returned quickly.
[edit] Sources
English Law:
- Woodfall, Landlord and Tenant (18th ed., London, 1907)
- Foa, Landlord and Tenant (4th ed., London, 1907)
- Fawcett, Landlord and Tenant (3rd ed., London, 1905)
- Gilbert on Distress and Replevin (London, 1823)
- Bullen, Law of Distress (2nd ed., London, 1899)
- Oldham and Foster, Law of Distress (2nd ed., London, 1889)
Scots Law:
- Flunter on Landlord and Tenant (4th ed., Edin., 1876)
- Erskine's Principles (20th ad., by Rankine, Edin., 1903)
- Rankine's Law of Landownership in Scotland (3rd ed., Edin., 1891)
- Rankine's Law of Leases in Scotland (2nd ed., Edin., 1893)
American Law:
- McAdam, Law of Landlord mid Tenant (New York, 1900)
- Bouvier's Law Dictionary (ed. G Rawle) (London and Boston, 1897), tit. Distress in Ruling Cases
- Landlord and Tenant (American Notes) (London and Boston, 1894-1901).
This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.
