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Browsing: Legal Papers of John Adams, Volume 1

This note contained in document ADMS-05-01-02-0002-0001-0002
83. In JA's hand. Pleadings Book, p. [53–55]. The writ, drawn by Samuel Fitch, is dated 27 Nov. 1772. It and the bond are in the Suffolk Inferior Court Files, Jan. 1773, No. 268. No record of subsequent pleadings or of the outcome has been found. The action of replevin was unique amoung common-law forms, in that prior to suit the plaintiff could have redelivery of a chattel alleged to have been wrongfully taken and detained by the defendant. If judgment for the plaintiff then followed, he might be awarded damages for the taking; otherwise the court ordered a return of the goods to the defendant. Unless he had not taken the goods, the defendant ordinarily pleaded a so-called “avowry” in which he justified the taking by stating affirmatively his claim to the chattel. The plaintiff then responded with a plea, and the pleadings proceeded as in other actions, but with the roles reversed. See Sutton, Personal Actions 91–94, 166; 1 Chitty, Pleading 162. Replevin originally could be brought only by one injured through wrongful distress (the taking of chattels from a wrongdoer to satisfy his liability). Although Blackstone still considered the action as thus limited, it had in fact earlier been expanded by the courts to include other wrongful takings. In 18th-century England there was authority supporting the latter position, but the action seems to have been limited in practice to cases of distress. See James Barr Ames, Lectures on Legal History 69–70 (Cambridge, Mass., 1913); 3 Holdsworth, History of English Law 285 note; 1 Chitty, Pleading 159 note; 3 Blackstone, Commentaries “146; 4 Bacon, Abridgment 384–385; Sir Geoffrey Gilbert, The Law of Distresses and Replevins 157–165, 257–342 (London, 1757).
In Massachusetts the Act of 10 June 1698, c. 6, §2, 1 A&R 322, permitted owners of cattle taken damage-feasant to bring replevin; a later Act, prescribing a form of the writ substantially like that followed here, provided that the action could not be brought against an officer distraining goods for taxes, fines, and forfeitures. Act of 6 Dec. 1720, c. 13, §2, 2 A&R 188. After the Revolution, a Massachusetts statute extended replevin to goods taken other than by distress. Act of 24 June 1789, §4, [1788–1789] Acts and Resolves 430–436. Although this enactment might be construed to mean that the prior practice had been narrower, the fact that the Act of 19 Feb. 1787, [1786–1787] Acts and Resolves 182–187, had established the writ of de homine replegiando, earlier used without statute in a slavery case, No. 40, suggests that the 1789 measure merely codified existing law. The instant case supports this view, since it does not involve a distress.
The use of replevin here is of particular interest because of the maritime nature of the subject matter. The contract of “bottomree” (i.e. bottomry), under which the plaintiffs claimed an interest, was a common device for financing marine ventures, in which the lender was secured by a lien on the vessel, but could receive payment only if she reached port safely. The transaction here was a loan to the master of a vessel for ship's necessaries in a foreign port, for which the owners were not personally liable; the customary remedy was a libel in rem in Admiralty. This was a proceeding beyond the power of the common law, brought directly against the vessel, in which she could be seized and sold to meet demands secured by maritime liens. Although the common-law courts had severely restricted the Admiralty jurisdiction in the 18th century, this was one variety of action which, for want of another remedy, was excepted from the restriction. See Gilmore and Black, Law of Admiralty 480–519; Arthur Browne, A Compendious View of the Civil Law and of the Law of Admiralty, 2:84–85, 195–196 (London, 2d edn., 1802); Charles Molloy, De Jure Maritimo et Navali, bk. 2, c. 11, §n (London, 8th edn., 1744); 8 Holdsworth, History of English Law 261–263. This case came up at a time when the Massachusetts Vice Admiralty Court was being attacked for its role in enforcing the Acts of Trade. See vol. 2:102–104, notes 17, 22, 24. The declaration here thus may represent an ingenious attempt to avoid the necessity of proceeding in Admiralty by using the only common law form which, like a libel in rem, was concerned not with personal liability, but with rights in the res. In all probability the tactic failed. Assuming that replevin lay in a case other than distress, a wrongful taking from one with possession or the immediate right to possession was nevertheless a necessary element. See 1 Chitty, Pleading 158–160; Abbott, Shipping 101; Gilmore and Black, Law of Admiralty 480–482.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2018.