John K. Windsor v. James Boyce

John K. Windsor v. James Boyce. When the plaintiff in an action of replevin relies only on a wrongful detention of the property, it is quite as necessary in general that he should prove a demand and refusal, in order to establish the wrongful detention, as it is to establish a conversion of the property in an action of trover. This was an action of replevin for a negro slave by John K. Windsor against James Boyce. The pleas were non eepit, property in the defendant, property in one John Windsor, and the act of limitations. The slave was in the possession t>f the defendant, but the only matter in dispute, so far as it was exhibited in the testimony to the court and jury, was, whether the slave was the property of John K. Windsor, the plaintiff, or of John Windsor. When the counsel for the plaintiff had closed his evidence, W. Saulsbury, for the defendant, submitted a motion for a nonsuit. We have had a good deal of testimony as to the conflicting claims of John K. Windsor, the plaintiff, and John Windsor, to the slave in question, but no proof whatever as to the wrongful taking, or the wrongful detention of him by the defendant. There is no evidence that he came into his possession wrongfully, and no demand by the plaintiff upon the defendant for him has been proved, to show a wrongful detention of him; and without proof of one or the other, the plaintiff cannot recover. Besides, no evidence has been adduced to show where he was taken, neither as to the hundred, nor the county, which was necessary, as the action of replevin is local and not transitory.' E. D. Cullen, for the plaintiff: The narr is in blank as to the place of the taking; but if the defendant designed to make the place or close in which the slave was taken material, he should have pleaded specially to that matter, that is to say, hé should have pleaded cepit in alio loco, which he has not done. Furthermore, our act of Assembly provides, Rev. Code, 379, sec. 12, that it shall not be necessary in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any manner the place in which the act is alleged to have been done, unless when, from the nature of the case, the place may be material, or traversable. Proof of a demand and refusal is not necessary in an action of replevin, as it is in trover. ' The bringing of the action itself is often a sufficient demand. The defendant has resisted this suit, and pleaded property in himself and in John Windsor, and totally denies the right of the plaintiff* to this slave; and this of itself is sufficient to establish and show a wrongful detention at least. Mr. Saulsbury, in reply: The plea of non cepit in modo et forma puts in issue the place of the taking alleged in the narr, and though the close is omitted and left in blank in tjie declaration, the hundred and county are alleged, and yet there is no evidence as to any taking in either. The statutory provisions referred to, have no such meaning as the counsel supposes, and were never intended to abolish the common law distinction between local and transitory actions. [MAJORITY — By the Court:] By the Court: Prior to our act of Assembly on the subject, the action of replevin was limited to a wrongful taking of goods and chattels and such property as this in this State, as at common law, and a wrongful detention merely was not sufficient to sustain it. Now, however, the action will lie for a wrongful detention as well as for a wrongful taking of personal property. But in either case, the fact must be alleged and proved, according as the plaintiff relies upon the one or the other; and where there is no wrongful taking, hut only a wrongful detention is the basis of the action, it is quite as necessary, in general, to prove a demand and refusal, in order to establish it, as it is to establish or prove a conversion of the goods in an action of trover. But in this case there is no evidence of either a wrongful taking, or a wrongful detention by the defendant; and the motion for nonsuit must therefore be granted.