A joint owner of personal property can maintain replevin in his own name to re cover it, against one whose right is not supe rior to his ; Chaffee v. Harrington, 60 Vt. 718, 15 Atl. 350.
It will not lie for the defendant in another action to recover goods belonging to him and taken on attachment ; 5 Co. 99 ; Clark v. Skinner, 20 Johns. (N. Y.) 470, 11 Am. Dee. 302 ; Kellogg v. Churchill, 2 N. H. 412, 9 Am. Dec. 104 ; Ranoul v. Grjffie, 3 Md. 54; nor, generally, for goods properly in the cus tody of the law; Ranoul v. Griffie, 3 Md. 54; Pott v. Oldwine, 7 Watts (Pa.) 173; Good rich v. Fritz, 4 Ark. 525 ; McLeod v Oates, 30 N. C. 387 ; Deshler v. Dodge, 16 How, (U. S.) 622, 14 L. Ed. 1084 ; Johnson v. Wing, 3 Mich. 163; Watkins v. Page, 2 Wis. 92; Read v. Brayton, 72 Hun, 633, 25 N. Y. Supp. 186; but this rule does not prevent a third person, whose goods have been improperly attached in such suit, from bringing this action; Thompson v Button, 14 Johns. (N. Y.) 84; Chinn v. Russell, 2 Blackf. (Ind.) 172 ; Powell v. Bradlee, 9 Gill & J. (Md.) 220; Angell v. Keith, 24 Vt. 371.
As to the rights of co-tenants to bring this action as against each other, see M'El derry v. Flannagan, 1 Harr. & G. (Md.) 308; Prentice v. Ladd, 12 Conn. 331; Fines v. Bolin, 36 Neb. 621, 54 N. W. 990; as against strangers, see D'Wolf v. Harris, 4 Mas. 515, Fed. Cas. No. 4,221 ; Scrugham v Carter, 12 Wend. (N. Y.) 131; McArthur v. Lane, 15 Me.
245 ; Taylor v. True, 27 N. H. 220 ; Noble v. Epperly, 6 Ind. 414.
The action lies, in England and most of the states, wherever there has been an Il legal taking ; 18 E. L. & E. 230; Pangburn v. Patridge, 7 Johns. (N. Y.) 140, 5 Am. Dec. 250; Ilsley v. Stubbs, 5 Mass. 283; Stough ton v. Rappalo, 3 S. & R. (Pa.) 562 ; Daggett v. Robins, 2 Blackf. (Ind.) 415, 21 Am. Dec. 752 ; Bruen v. Ogden, 11 N. J. L. 370, 20 Am. Dec. 593 ; Drummond v. Hopper, 4 Harr. (Del.) 327; and in some states wherever a person claims title to specific chattels in an other's possessions; Ward v. Taylor, 1 Pa. 238 ; Skinner v. Stouse, 4 Mo. 93; Waterman v. Matteson, 4 R. I. 539 ; Lathrop v. Bowen, 121 Mass. 107 ; Eveleth v. Blossom, 54 Me. 447, 92 Am. Dec. 555 ; while in others it is re stricted to a few cases of illegal seizure ; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324 ; Eggleston v. Mundy, 4 Mich. 295. The object of the action is to recover possession; and it will not lie where the property has been restored. And when brought in the detinet the destruction of the articles by the defendant is no answer to the action ; 3 Bla. Com. 147.
The declaration must describe the place of taking. Great accuracy was formerly re quired in this respect; 2 Wins. Saund. 74 b; Gardner v. Humphrey, 10 Johns. (N. Y.) 53; but now a statement of the county in which it occurred is said to be sufficient , 1 P. A. Bro. 60.
The chattels must be accurately described in the writ; Snedeker v. Quick, 11 N. J. L.
179. The following descriptions were held sufficient : Six oxen ; Farwell v. Fox, 18 Mich. 166; a lot of hard wood ; all the uten sils in a barn; Peterson v. Fowler, 76 Mich. 258, 43 N. W. 10 ; certain logs (identified by their mark); Schulenburg v. Harriman, 2 Dill. 398, Fed. Cas. No. 12,486 ; the contents of a (specified) grocery store ; "pitchman v. Potter, 116 Mass. 371; a moveable building on a (specified) lot, but found on another rot ; Elliott v Hart, 45 Mich. 234, 7 N. W 812 ; but not a lot of sundries; Warner v Aughen baugh, 15 S. & R. (Pa.) 9. Certainty to a gen eral intent is sufficient ; Ruch v. Morris, 28 Pa. 245; so is a description that would sus tain a chattel mortgage ; Ft. Dodge v. Moore, 37 Ia. 388. The sheriff may require the plaintiff to attend and point out the goods ; Foredice v. Rinehart, 11 Or. 208, 8 Pac. 285 ; Smith v. McLean, 24 Ia. 324; no amendment of the writ is allowed ; Paterson v. Parsell, 38 Mich. 607 (contra; Jaques v Sanderson, 8 Cush, [Mass.] 271); so as to conform to the affidavit and petition; Roberts v. Gee, 39 Fla. 531, 22 South. 877 ; but not to increase the amount of goods properly described in the writ; Musgrave v. Farren, 92 Me. 198, 42 Atl. 355.
A plaintiff may show that he mistakenly undervalued the property and the surety is bound by the judgment against his principal to the limit of his obligation ; the question of the value as found in the replevin cannot be relitigated in a suit against the surety ; Blerce v. Waterhouse, 219 U. S. 320, 31 Sup. Ct. 241, 55 L. Ed. 237.
The plea of non cepit puts in issue the tak ing, and not the plaintiff's title ; Rowland v. Mann, 28 N. C. 38; Sawyer v. Huff, 25 Me. 464; Ely v. Ehle, 3 N. Y. 506; Hopkins v. Burney, 2 Fla. 42; Vose v. Hart, 12 Ill. 378 ; and the pleas, not guilty; Gibson v. Mozier, 9 Mo. 256 ; cepit in alio loco, and property in another, are also of frequent occurrence.
An avowry, cognizance, or justification is often used in defence. See those titles.
The judgment, when the action is in the detinuit, if for the plaintiff, confirms his ti tle, and is also for damages assessed by the jury for the injurious taking and detention ; M'Cabe v. Morehead, 1 W. & S. (Pa.) 513 ; Cable v. Dakin, 20 Wend. (N. Y.) 172 ; Dore v. Hight, 15 Me. 20 ; Barham v. Massey, 27 N. C. 192. In actions of replevin the meas ure of damages is the real value of the chat tel at the time the tortious possession of the defendant began, with damages for its un lawful detention ; Maguire v. Dutton, 54 N. J. L. 597, 25 Atl. 254.
The defendant in replevin is not concluded by the value of the property named in the bond of the writ, when he brings an action on the bond, and is not estopped from show ing such value to be greater than there stat ed; Washington Ice Co. v. Webster, 125 U. S. 426, 8 Sup. Ct. 947, 31 IA Ed. 799.
See JUDGMENT.