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Replevin

property defendant action possession

A legal action to recover the possession of items of PERSONAL PROPERTY.

Replevin is one of the oldest FORMS OF ACTION known to COMMON LAW, first appearing about the beginning of the thirteenth century. It was a legal procedure for claiming the right to have personal property returned from the possession of one who had less right to hold it than the plaintiff. Originally the action may have been available only for the recovery of goods that were illegally held past the time the defendant had the right to their possession, but soon the right was extended to cover every situation, whether the defendant wrongfully took or just withheld another's property. As time passed, if the goods themselves could not be recovered, the courts sometimes gave judgment for an amount of money representing the value of the goods. Generally, however, replevin aimed at restoring the property itself to the person entitled to possess it. The defendant could not claim as an excuse that the property belonged to someone not involved in the lawsuit because the only issue before the court was rightful possession, not title. For example, an executor of an estate could seek replevy of racehorses boarded by the decedent if the owner of the stable refused to release them. It would be no defense that the executor was not the owner of the horses.

Replevin differed from the actions of TRESPASS and TROVER in that it sought recovery of the specific items of property in dispute rather than monetary damages. Unlike trover, the plaintiff was not bound to prove that the defendant had converted the goods to his or her own use, only that the defendant wrongfully refused to give them up. Unlike trespass, the defendant in an action to replevy goods was not claiming that he or she owned the property, only that he or she was entitled to hold on to it rather than give it to the plaintiff. The action of DETINUE was available to recover property that the defendant acquired lawfully and then unlawfully refused to return, such as in an ordinary BAILMENT situation.

Like other forms of action, replevin was wrapped up in technicalities that made it unwieldy for many plaintiffs. Modern statutes have replaced the old forms with more efficient laws of CIVIL PROCEDURE; in most states, these include a particular statute regulating the recovery of personal property wrongfully withheld. These procedures generally incorporate elements of the common-law actions of detinue and replevin. The plaintiff usually initiates proceedings by serving papers showing why he or she claims the property and by posting a bond equal to double the value of the property. Then the sheriff seizes the property and, after a short period, delivers it to the plaintiff to hold until a hearing can be had on the claim. Most statutes allow the defendant to regain the property before the hearing by posting a bond of his or her own and filing an AFFIDAVIT stating that he or she is entitled to possession of the property. In some states, it is possible to punish a defendant who secretes, destroys, or disposes of the property by citing him or her for CONTEMPT of court. An uncooperative defendant or the losing party can be ordered to pay monetary damages to the other party. The bond posted by either party is a source of money to pay any costs or damages assessed against that party.

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about 10 years ago

There seems to be an obvious problem here with the posting of a bond twice the value of the property that is being demanded to be returned. Withholding substantial amounts of (personal) propety of signifigant value, will conspire against, thwart, or prevent the recovery, if the bond required is so excessive, as to prevent the plaintiff from bringing action for the recovery of property of significant value.