Badger v. Phinney
Massachusetts Supreme Judicial Court
This was an action of replevin, in which the plaintiff declares upon a taking by the defendant on the 20th of August, 1818, and on a detainer at the time of suing out the writ, which is tested and was executed on that day.
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This was an action of replevin, in which the plaintiff declares upon a taking by the defendant on the 20th of August, 1818, and on a detainer at the time of suing out the writ, which is tested and was executed on that day. The defendant pleaded property in himself as administrator of the estate of Rufas Rand, with a protestando that he did not take; and also non cepit, with a protestando that the property is in him as administrator ; and it was agreed that, if it was competent for the defendant thus to plead, issue should be joined by the plaintiff upon the said pleas. It was agreed by the…
1Opinion of the CourtPutnam, J.
Several objections have been made to the plaintiff’s recovery.
It is said that there has not been any tortious taking by the de fendant, and that replevin lies only where there has been such a taking. And it is a general remark in the books that, where there has been a tortious taking, replevin will lie, as well as detinue and trespass.
Where the taking was originally without wrong, but the party detains the goods wrongfully, the owner should have some remedy for them specifically, if to be found. The defendant contends that *326detinue, in such case, is the only remedy. This is certainly not so…
2Cases cited14 opinions
- Yesler v. City of SeattleWashington Supreme Court · 1890
- Mills v. MartinNew York Supreme Court · 1821
- Marshall v. DavisNew York Supreme Court · 1828
- Ilsley v. StubbsMassachusetts Supreme Judicial Court · 1809
- Baker v. FalesMassachusetts Supreme Judicial Court · 1819
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3Cited by106 opinions
- Ronge v. DawsonWisconsin Supreme Court · 1859
- Chandler v. SimmonsMassachusetts Supreme Judicial Court · 1867
- MacGreal v. TaylorSupreme Court of the United States · 1897
- Kilgore v. JordanTexas Supreme Court · 1856
- Marshall v. DavisNew York Supreme Court · 1828
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