Editing Replevin (section)

==History==
One of the oldest actions in the royal courts, replevin had its roots in the law of customary courts, and its formal origin can be attributed to [[Ranulf de Glanvill|Glanvil]], [[Justiciar|Chief Justiciar]] of England during the reign of [[Henry II of England|Henry II]] (1154–1189).{{sfn|Blackstone|1771|p=145}} Strictly speaking, replevin in its original form was a provisional remedy.{{sfn|Kiralfy|1962|p=403}} Its provision was to procure for the plaintiff the return of chattels taken out of his possession until the right to their possession could be decided by a court of law. No doubt, it was designed to avoid quarrels likely to cause a breach of the peace pending a settlement of the dispute about the right to possession. In other words, the rule of law was beginning to replace that of local force of arms and personal conflict as the resolution of disputes over chattels. The action was in direct succession to the efforts made to regulate self-help, which were the origin of the law of tort. The form of legal recourse was in connection of distress (''distractio''). This was the practice of taking some chattel from the peasant or underling until some action was performed. In the medieval era the services for which distress could be levied were numerous, since the incidents of tenure were then very numerous. Distress was also leviable as ''damage feasant''. When animals strayed and did damage to a neighbor, they could be retained until the damage was made good. Whether or not the distress was levied for rent or for livestock ''damage feasant'', the owner of the animals could obtain their release by giving "gage and pledge" – a form of security that the damage would be made good. One peculiarity of distraint lay in the fact that the distrainor did not get any form of legal possession. The goods and chattels were considered to be in the custody of the law. As a result, there was no taking of possession by the distrainor that was unlawful, since no possession was technically inferred.<ref>{{cite book |last= Enever|first= Frank Alfred|year= 1931|title= History of the law of distress for rent and damage feasant|others = Introduction by [[Edward Jenks]]|location= London|publisher= Routledge|oclc= 250426259}}</ref>{{sfn|Kiralfy|1962|pp=403{{endash}}404}}

The action in replevin began to appear in the thirteenth century. It seems clear that originally the action of replevin lay simply where the question to be determined was that of wrongful distress. Excess and abuse of distress was punished.<ref>Year Book 32 Edward I</ref><ref>Year Book 33 Edward I p. 54</ref><ref>52 Henry III (1267), cc. 1,2,3,4</ref>

Since the distrainor did not get possession he was not originally liable in trespass, and the spheres of the two forms of action remained distinct. During the fourteenth century, after some vacillation by judges, it was held that the plaintiff could elect which remedy he chose when the chattels had been distrained.<ref>Year Book 7 Henry IV, M., pl. 5 at f. 29</ref> It was also held that replevin could be used in place of the writ of ''trespass de bonis aspotatis'' (trespass by the asportation of goods). In reality, there is little evidence this substitution ever occurred with any frequency, if at all.<ref>{{cite book |last= Ames|first= James Barr|author-link=James Barr Ames|year= 1913|title= Lectures on legal history and miscellaneous legal essays|url= https://archive.org/stream/lecturesonlegalh00ames#page/182/mode/2up|location= Cambridge|publisher= Harvard University Press|page= 183}}, at fn. 2</ref>{{sfn|Kiralfy|1962|p=404}} The rule involved interference with the possession of a chattel by the rightful owner. In 1856, ''Mennie v. Blake'' summarized the law of replevin by stating, "... it seems clear that replevin is not maintainable unless in a case in which there has been first a taking out of the possession of the owner.  This stands upon authority and the reason of the thing".<ref>{{cite CommonLII|litigants=Mennie v. Blake|link=|reporter=ER|year=1856|num=745|volume=119|firstpage=1078|pinpoint=849|parallelcite=6 El & Bl 842|date=3 July 1856|courtname=|juris=}}</ref>

The mere claim by the distrainor that he had a right to the chattels distrained was a technicality that ended the action in replevin. It was then necessary to re-file using a new writ invented in the early fourteenth century, called the writ ''de proprietate probanda'' – a writ "concerning the proof of ownership".<ref>H. E. L., III p. 284, n.7; S. S., p. 197</ref>{{sfn|Kiralfy|1962|p=404}}

During the seventeenth and eighteenth centuries the action of [[trover]] also arose, which largely replaced that of trespass in the matter of wrongful distress. Replevin and trover never completely coincided, because there was a limitation on replevin.{{sfn|Kiralfy|1962|p=404}}

Until the Common Law Procedure Act 1854 came into effect in England and Wales, a defendant was able to exercise an option of paying damages instead of restoring the actual goods.<ref>Common Law Procedure Act 1854, s. 78, discussed at {{cite book |last= Kerr|first= Robert Malcolm|year= 1854|title= The Common Law Procedure Act, 1854, with practical notes|url= https://archive.org/stream/commonlawproced00kerrgoog#page/n6/mode/2up|location= London|publisher= Butterworths|pages= 50{{endash}}51}}</ref>

Section 65 of the [[Tribunals, Courts and Enforcement Act 2007]] made provision for the common law rules governing replevin in [[England and Wales]] to be replaced,<ref>{{Cite legislation UK | type = si| year = 2014| number = 768| si = The Tribunals, Courts and Enforcement Act 2007 (Commencement No. 11) Order 2014}}</ref> although this provision did not become effective until 6 April 2014.<ref>{{Cite legislation UK |type = act| year = 2007|section = 65(c)|act = Tribunals, Courts and Enforcement Act 2007}}</ref>