Replevin arose out of the need of a turbulent society to discourage resort to self help and although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession.
Replevin arose to deal with the matter of the illegal distress of goods for rent or damage feasant,[9] in order to procure their restoration to the owner.
In such cases, replevin actions are still designed to afford the petitioning party a relatively speedy process for obtaining judgment, as compared to typical lawsuits.
A common example is where an automobile finance company initiates a replevin action to gain possession of a vehicle, following payment default.
In occasional cases of no particular numismatic interest, however, e.g., a bag of money whose contents have not yet been counted, an action may be filed to recover the actual coins and/or bills in question if they are still together.
Replevin remains the modern action, albeit defined by statute, for recovery of chattels pending a decision of the right of 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.
[26][24] During the seventeenth and eighteenth centuries the action of trover also arose, which largely replaced that of trespass in the matter of wrongful distress.
[24] 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.
In a case in which immediate possession of property is sought, the petitioning creditor is often required to post a bond to protect the defendant against wrongful detention.
Once service of process is achieved, the defendant will likely be required to attend a court hearing on a specific date, then the parties' rights to possession will be adjudicated.
A plaintiff creditor can typically prevail in the case by offering testimony and business records showing the borrower/defendant's obligation to pay, and default in payment.
The Court will thereafter issue a judgment and authorize issuance of a writ of replevin, which is served by a sheriff's deputy, working in conjunction with persons hired or employed by the creditor to take the collateral or other property into its possession.
Once the creditor takes the property into its possession, it can sell the collateral, and apply the proceeds to the debt owed by the borrower.
In the case of non-payment of a public utility, a meter is typically left on the premise to allow reconnection should the balance due be paid, or if the person owing the bill sells the premise to another person who does not owe arrears to the utility, however, it is possible for one to reconnect the device and continue obtaining the commodity in question.
Our British Columbia replevin action, which is wider than the English, gives the right to replevy to the party who could maintain trespass or trover.
Provisions analogous to replevin in the case of distraint are found in the Civil Code of Quebec (known as movable hypothec without delivery, at Art.