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The language of the law. Part Latin, part Anglo-Saxon, all confusing.

"Gimme! It's mine!"

So Landlord and Tenant have a dispute over rent and Landlord waltzes in one day, and, in satisfaction of the rent then due and owing, helps himself to “one poplar chest, one pine chest, one feather bed, one chaff bed, and one green bedstead.” Only Tenant says he did pay the rent and he wants the stuff back. Off he goes to the law court,1 and what does he say to the court? “Gimme! It’s mine!”

Or maybe the new deacons of the First Church of Dedham get into a tussle with the former deacon of the First Church of Dedham. The church says some of the property that’s now in the hands of the former deacon ought to be in the hands of the current deacons and the former deacon isn’t about to give it up. So into the law court they go,2 and what is the church saying to the judge? “Gimme! It’s mine!”

Or maybe Husband dies, leaving a will that gives Wife a life estate in one farm if she won’t claim any right to other land. But the will doesn’t mention personal property, in which Wife would ordinarily have a one-third dower right, and the executors don’t want to give her the property. Wife hauls the executors into court,3 and what does she ask of the judge? “Gimme! It’s mine!”

Now really. You have to love it — a specific legal cause of action which, broken down into its most basic parts, is one person saying to the court: “Gimme! It’s mine!”

You won’t find any papers in any of these cases with the phrase “Gimme! It’s mine!” Instead, you have to look for one single old word in court records and case files and judicial opinions that means fundamentally the same thing. It’s the word replevin.

Trying to understand that word from the dictionary definition isn’t easy. It’s defined as a “personal action ex delicto brought to recover possession of goods unlawfully taken, … if the party from whom the goods were taken wishes to have them back.”4 That’s a lot of help. Now we have to go look up ex delicto to find out that’s one of two major classes of obligations: “those arising ex contractu, (out of a contract,) and those ex delicto… such as grow out of or are founded upon a wrong or tort.”5

Yeah, yeah, yeah. Okay. What it means is, “you took it, I want it, hey, judge — tell ’em: gimme, it’s mine.”

Replevin actions were brought all the time in early courts, and the actions asked for the return of all kinds of things seized or taken or detained by somebody else:

     • a ship6
     • a horse7
     • a cow8
     • cattle9
     • several sheep10
     • eleven cows, one mare and colt, one cow, a steer, one piece of corn, and six tons of hay11
     • a quantity of boards sawed by the plaintiffs at their saw mill12
     • thirty bushels of wheat13
     • a wagon and four horses14
     • twelve hogsheads of tobacco15
     • two pipes of brandy, and sundry other articles of merchandise16
     • thirty-one boxes of sugar17
     • a quantity of salt and coals18
     • two hogsheads of coffee19
     • Six hundred barrels of flour20
     • Sixty pieces of bandanoes21

Sometimes the cases weren’t about the actual return of the property, but about a promise to pay money in lieu of coughing up property. If a judgment was entered against a debtor and the sheriff was sent out to execute on property, the debtor and his security could give a bond to pay the judgment within a certain time, often a matter of a few months. If the debt wasn’t paid, the action was often on the bond and usually against the surety, not the deadbeat debtor.22

In other cases, the real fight didn’t begin until a plaintiff lost a replevin case. That’s because the plaintiff had to post a bond, usually for twice the value of the property, to cover losses to the defendant or to whatever court officer actually seized the property if the plaintiff were to lose the case. So you’ll see some cases where the case is over the bond money after the court decision went in favor of the defendant.

In the 1791 Connecticut case of Buel v. Davenport, for example, Baxter owed money to Davenport and Davenport grabbed Baxter’s horse. Baxter got the horse back by replevin, but had to post a bond with Buel as surety. Davenport then got a judgment against Baxter for the original debt and got him tossed into the clink. But Baxter was broke, and took the oath as an insolvent debtor to get out of jail. So Davenport went after Buel on the replevin bond, and won.23

Now you’ll notice one thing about every one of these cases: the property involved in every one of them is personal property. No real estate. Only personal property was subject to replevin; anything fixed to the land — part of the freehold estate itself — couldn’t be obtained by way of this particular action.24 Which, during this time period, leads to the inevitable issue in southern states.

Yep, slaves were property, and their possession was often a subject of replevin actions.25 In the 1801 Maryland case of Smith v. Williamson, for example, it turned out that William Lyles gave his daughter Elizabeth several slaves in 1779 when she married Smith. In 1782, Smith gave the slaves back to Lyles and, in 1783, Lyles gave them to his Smith grandchildren Elisha, Martha and Eleanor. In 1788, Elizabeth died, and Lyles took the slaves back to work for him but paid his grandchildren for their hire. In 1790, Lyles died and his widow said the slaves belonged to the Lyles estate and sold them to Williamson. Smith sued on behalf of his children. And what was he saying? Basically “gimme, they’re mine! (on behalf of my kids).” And the court agreed.26

Yep, that’s replevin, all right. But isn’t it so much easier to understand when you translate it into plain English?

“Gimme! It’s mine!”


 
SOURCES

  1. Albright v. Pickle, 4 Yeates 264 (Pa. 1805).
  2. Baker v. Fales, 16 Mass. 147 (Mass. 1819).
  3. Griffith v. Griffith’s Ex’rs, 4 H. & McH. 101 (Md. 1798).
  4. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1024, “replevin.”
  5. Ibid., 444, “ex delicto.”
  6. Hempstead v. Bird, 2 Day 293 (Conn. 1806).
  7. Smith v. Trawl, 1 Root 165, 166 (Conn. 1790).
  8. Faget v. Brayton, 2 H. & J. 350 (Md. 1806).
  9. Rust v. Low, 6 Mass. 90 (Mass. 1809).
  10. Hopkins v. Hopkins, 10 Johns. 369 (N.Y. Sup. Ct. 1813).
  11. Shepherd v. Boyce, 2 Johns. 446 (N.Y. Sup. Ct. 1807).
  12. M’Farland v. Wheeler, 1 Lock. Rev. Cas. 321 (N.Y. 1799).
  13. Conlyn v. Spear, 2 Del. Cas. 197 (Del. C.P. 1803).
  14. Roman v. Stratton, 5 Ky. 199 (Ky. 1810).
  15. Stevenson v. Ridgely, 3 H. & J. 281 (Md. 1810).
  16. Buffington v. Gerrish, 15 Mass. 156 (Mass. 1818).
  17. Clement v. Jones, 12 Mass. 60 (Mass. 1815).
  18. Ilsley v. Stubbs, 9 Mass. 65 (Mass. 1812).
  19. Summeril v. Elder, 1 Binn. 106 (Pa. 1804).
  20. Stoughton v. Rappalo, 3 Serg. & Rawle 559 (Pa. 1818).
  21. Broom v. Fox, 2 Yeates 530 (Pa. 1800). And yeah, I had to look that up too. It’s a bandanna but dyed in a way that the part that got tied didn’t get any dye and stayed white. Beats the heck outta me why anybody would bother, but…
  22. See e.g. Brooks v. Shepherd, 7 Ky. 572 (Ky. 1817).
  23. Buel v. Davenport, 1 Root 261 (Conn. 1791).
  24. See e.g. Cresson v. Stout, 17 Johns. 116, 121 (N.Y. Sup. Ct. 1819).
  25. See e.g. Cummings v. MacGill, 6 N.C. 357 (1818); Monroe v. James, 18 Va. 194 (1814); Newby’s Adm’rs v. Blakey, 13 Va. 57 (1808); Robinson’s Administrator v. Brock, 11 Va. 212 (1807); Biggers’ Adm’r v. Alderson, 11 Va. 54 (1806); Higgenbotham v. Rucker, 6 Va. 313 (1800).
  26. Smith v. Williamson, 1 H. & J. 147 (Md. 1801).
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