34 Ill. 436 | Ill. | 1864
delivered the opinion of the Court:
At common law the action of replevin was commenced by an original writ, issued out of the court of chancery, directed to the sheriff of the county where the goods and- chattels to be replevied were, commanding him to replevy and deliver them, and to cause the defendant to be brought to justice for their wrongful detention. An original writ was only issued at Westminster, and to remove the inconvenience of procuring one when required in a distant part of the kingdom, the statute of Marlbridge, 52 Hen. II, ch. 21, was passed, which provided that if the beasts of any man were taken and wrongfully withholden, the sheriff might, after complaint made to him thereof, deliver them without “ let or gainsaying ” of him who took the beasts. The original writ was thus dispensed with, and a proceeding upon a complaint made to the sheriff under the statute, was called a “ proceeding by plaint.”
The Revised Statutes of this State (chap. 88, § 5) provide that the proceedings in an action of replevin shall be commenced by plaint, and the word has the same meaning that it had regarding proceedings under the statute of Marlbridge. It signifies that there is to be a complaint made that the goods or chattels were wrongfully taken or are wrongfully detained. Our statute requires an affidavit to be filed by the plaintiff, or by some one in his behalf, stating that he is the owner of the property about to be replevied, or that he is then lawfully entitled to the possession thereof, and that the same has not been taken for any tax, assessment or fine levied by virtue of any law of the State, nor seized under any execution or attachment against the goods and chattels of such plaintiff, liable to execution or attachment. It is usual to state in the affidavit that the goods and chattels were wrongfully taken or are wrongfully detained, and in that manner the plaint mentioned in the statute is made.
It is a controverted question whether the action could be brought at common law for goods or chattels which had come lawfully to the possession of the defendant, and were only wrongfully detained. In New York it was held that an action lay only for goods or chattels unlawfully taken and detained; and in Massachusetts it was held to be a proper remedy for goods and chattels unlawfully detained, without reference to the mode by which the possession of the defendant had been acquired. Our statute gives the remedy where the goods or chattels have been wrongfully distrained or otherwise wrongfully taken, or shall be wrongfully detained. The possession of land was always a sufficient title thereto as against a stranger. The rightful owner could not forcibly enter and eject a disseizor, nor question his rights, excepting in a real or possessory action for the recovery of the land. The possessor of lands might bring replevin for chattels severed from the freehold; and as the ownership of lands drew to it the constructive possession, the owner might bring replevin for chattels thus severed where there was no adverse possession. But the owner could not bring replevin for chattels severed from land in the adverse possession of the defendant, or of a third person. The law does not permit him to assert his title to the land, against the person in adverse possession, in that manner. Morris on Replev. 57, 58; 1 Smith’s Lead. Cas. 485; 1 Chit. Pl. 163; Eaton v. Southby, Willes, 131; Snyder v. Vaux, 2 R. 427; Vausse v. Russell, 2 McCord, 329; Mather v. Trinity Church, 3 S. and R. 509; Baker v. Howell, 6 id. 476; Brown v. Caldwell, 10 id. 114; Powell v. Smith, 2 W. 126; DeMott v. Hayeman, 8 Cow. 220; Davis v. Easeley, 13 Ill. 192. Consistently with this rule a landlord might bring replevin for chattels wrongfully severed from the freehold by a tenant, as the title to the land is not thereby drawn in question. Langden v. Paul, 22 Vt. 205; Sands v. Pfiefer, 10 Cal. 258; Sanders v. Reed, 12 N. H. 558.
The judgment of the court is reversed and the cause remanded.
Judgment reversed.
