A Practical Treatise on the Law of Replevin: As Administered by the Courts of the United States

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J.E. Cobbey, 1890 - Replevin - 933 pages
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Contents

Venire how laid in a replevin of a distress
49
Right to the possession indispensable to maintain the action 94
50
The sameNegative illustrations
55
A lien for advances 104
60
Where only part of the property is taken
67
An officer may replevy from another officer or from a receiptor
68
Must be for certain specific articles
73
Title deed may be
79
The possession must be under a claim of right
85
Where no default has been made 198
86
Ownership alone without possession not
91
Mortgagee must discharge lien for keeping stock first 201
98
Effect of sale by one partner of his interest 226
108
Symbolical delivery sufficient
113
Title by gift insufficient
119
One who has placed the title in another is estopped
125
While possession is prima facie title it is not good against a supe
131
General role
132
Creditors of a common debtor
138
Need not allege his official character in petition 292
142
One entitled to possession for a special purpose
144
May be brought where property is or where defendant resides 327
147
A stranger to the writ of seizure may replevy 301
149
A servant
150
Husband cannot replevy from a wife he has abandoned
156
Owner may replevy as against a stranger notwithstanding the lien 102
164
The action may be brought in any court of competent jurisdiction 329
165
Paramount title is not necessary as against trespassers and wrong
168
May bring against widow of mortgagor
175
General rule in regard to houses trees crops grass and other prop
180
Where the mortgagor claims damage for a breach of conditions
181
Action may be brought in name of mortgagee though not the real
187
When mortgagee may replevy from officer levying on mortgaged
193
A person dealing with an agent or baileemust look to theauthority
207
Where a bailee pledges goods without authority owner may
213
Ratification cannot be inferred by lapse of time 412
215
CHAPTER X
219
A purchaser of stolen property cannot maintain replevin against
221
The interest of partnersHow considered
225
A tenant in common cannot replevy from an officer who has taken
229
ECTION
231
Where by agreement one is to have exclusive possession replevin
235
Possession of goods by mistakeLien
238
Same of sheriffs sale 509
239
When one joint owner may sever the property by his own act with
241
Where title reserved vendor may replevy from assignee
247
Use restricted to certain limits
253
Must offer to return note before suing 257
257
A vendor may reclaim property obtained from him by fraud
263
Payments in counterfeit money
269
Tender must be unconditional 518
272
What acts constitute a return and rescission
277
Requisites of affidavit 583
278
Where Bold on execution vs buyerCannot be replevied
283
Does not lie by vendee to enforce contract of sale
289
The same
292
A purchaser of property so taken is not protected from replevin 30ft
304
But the action cannot be brought by the attachment plaintiff
310
Liquors seized under a statute forbidding their sale cannot be
316
Rule in regard to replevin of attached property 624
317
The legislature may bar the right by replevin
322
CHAPTER XXIV
330
Object of the action primary SfJl
332
Replevin for property illegally seized may be brought in any court
337
Payment of tax after seizure no ground for replevin
343
The sameIllustrations
349
If served on defendant but not on the property the action proceeds
350
circumstances
353
Articles that can be identified can be repleviedAs to them it
406
Wife may maintain in her own name
420
Non compos mentis
427
Defendant must have possession at thetimethesuitwascominenoed
433
Power and authority of the officer as a defendant in such eases
439
Effect of demand and refusal 445
445
Want of demand must be taken advantage of in timeWillingness
451
When a rightful possession becomes wrongfulWhen demand neces
457
Not necessary where trespass committed in the takingStolen
463
But a contrary rule has been laid down
473
Proof ofWhen made
479
Acts and notice equivalent to demandIntervenor
485
Action by mortgagee vs mortgagor
491
When demand of an officer proceeding under a writ of attachment
497
Fraud by vendeeAttaching or other creditorNo demand neces
503
The affidavitIts history and what it is
525
Allegations of the affidavit should be in the present tense 581
532
Must state that it was not taken on a writ of replevin
538
A description which can be made definite is good
547
stated and a defective cause of action
563
Amendment sworn to by different agent of plaintiff from original
573
Approved foi ui of affidavit
584
Sufficiency of complaint
590
Must make issuable allegations
596
Petition should be construed as a whole
602
Replevin cannot be prosecuted orma pauperis 666
607
Origin of present writ and proceeding
608
Where the sheriff is a party directed to the coroner
614
The description may be amended
620
Where bond is filed first
628
Failure to serve the defendant is cured by appearance
637
Must see that the writ is regular on its face
643
Officer cannot take property from the person 649
649
An officer may have judgment for a sum larger than the value
650
Substitution of defendants 1152
656
Defendant does not have to assist the officer 055
657
BarEstoppelFormer replevin 1163
662
An officer is liable on his official bond for the judgment against
668
Of two defendants the one who pays takes the title 1175
669
Essential requisites of statutory bond
670
The object of requiring a bond
676
CHAPTER XXXVIII
681
The sameExecution
682
But if defendant claim further relief the plaintiff should be heard
687
Sheriff responsible for undervaluation or improper bqnd
688
The action should not be dismissed on slight grounds 1211
690
Where sufficiency of bond must be excepted to
694
Judgment in trial of the right of property has the same effect 1220
696
Ordinary bond does not take the place of security for costs
700
It may be brought against the plaintiff 1233
702
Joint parties should join in proceedings to vacate or modify
704
Does not give plaintiff a new title
706
Defense cannot be changed upon appeal 1245
710
Breach of the condition to return 1265
715
Where the suit abates by removal of the court bond not liable 1259
721
CHAPTER XLII
724
The same 1275
730
est 1237
733
But if defendant in replevin take advantage of such error to dis
742
Who are proper parties to a suit on the replevin bond 1294
744
Procedure in case of lost bond 1306
750
The sureties obligation only covers the default of their principal
751
Sureties are bound by the judgment rendered in the replevin action 1314
756
Contribution and subrogation 1336
769
In justice court the damages are not limited by the jurisdiction
775
Illustrations of matter not allowed to be shown in mitigation
787
A party in his suit on the bond must occupy a position consistent
806
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Page 281 - 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.
Page 496 - ... 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.
Page 488 - 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.
Page 367 - ... to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages...
Page 664 - 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.
Page 490 - 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.
Page 489 - 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,...
Page 491 - 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.
Page 489 - 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...
Page 181 - 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.

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