Madison County IL Archives Court.....Wright, V. Armstrong 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:48 am

Source: Il Court Reports, 1819-1830
Written: 1826

June Term 1826

Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error.

ERROR TO MADISON.

To maintain the action of replevin there must be an unlawful taking from the 
actual, or constructive possession of the plaintiff.

Armstrong, the plaintiff, in the court below, sued out a writ of replevin 
against Wright for a horse, to which Wright pleaded non cepit; secondly, 
property in one Elihu Mather; thirdly, property in himself; and lastly, the 
statute of limitations. On the trial a bill of exceptions was taken, from 
which it appears that the plaintiff proved that the horse in question was the 
property of his wife,—before her intermarriage with him, and while she was a 
minor, the horse strayed from her, and was not in her actual possession for 
five years before the commencement of the suit. The defendant proved that the 
horse in question was in the possession of Philip Creamer for about three 
years, who sold and delivered him to one Lock, who sold and delivered him to 
Elihu Mather, who sold and delivered him to the defendant. It was claimed that 
the horse had strayed from the plaintiff more than five years previous to the 
commencement of this suit, during a part of which time the plaintiff's wife 
was a minor. No other taking was proved on the part of the defendant than the 
aforesaid sale and delivery, except that it was proved that Creamer took the 
horse into his possession after it strayed from plaintiff's wife. The jury 
found the property in the plaintiff. A motion was made, on this proof, to 
direct a nonsuit, which the court overruled, but gave judgment on the verdict 
for the plaintiff, to reverse which judgment a writ of error was taken to this 
court, where it was assigned for error, that the court ought to have directed 
a nonsuit, for the reasons, first, because no actual taking of property in the 
plaintiff's declaration mentioned, was proved to have been done on the part of 
Wright, the defendant; second, that no tortious taking of the said property 
was shown on the part of said Wright; and third, that no taking was proved 
from the plaintiff's possession by any person.

Opinion of the Court by Justice Browne. This was an action of replevin, 
brought against the plaintiff in error for the unlawful taking of a horse. The 
defendant pleaded, besides property in himself and property in a third person, 
non cepit, and the statute of limitations. On the trial before the circuit 
court of Madison county, the defendant in error, the plaintiff below, proved 
the horse was claimed to belong to plaintiff's wife. That it was also claimed 
by Philip Creamer, who sold the horse to one Lock, who sold it to one Elihu 
Mather, who sold it to the defendant. This was all the evidence of taking by 
the defendant.

To maintain the action of replevin, there must be an unlawful taking from the 
actual, or constructive possession of the plaintiff, which has not been 
proved. The judgment must therefore be reversed. (a) (1)

Judgment reversed. 

Starr and Cowles, for plaintiff in error. 

Blackwell, for defendant in error.

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(a) Replevin lies for any unlawful taking of a chattel, and possession by the 
plaintiff and an actual wrongful taking by the defendant, are necessary to 
support the action. Pangburn v. Patridge, 7 Johns. Rep., 140.

The action of replevin is grounded on a tortious taking, and sounds in damages 
like an action of trespass. Hopkins v. Hopkins, 10 Johns. Rep., 369.

At common law, a writ of replevin never lies, unless there has been a tortious 
taking, either originally or by construction of law, by some act which makes 
the party a trespasser ab initio. Meany v. Head, 1 Mason, 319.

The plea of non cepit puts in issue the fact of an actual taking; and unless 
there has been a wrongful taking from the possession of another, it is not a 
taking within the issue; and a wrongful detainer after a lawful taking, is not 
equivalent to an original wrongful taking. Ibid.

A mere possessory right is not sufficient to support this action: there must 
be an absolute, or at least a special property in the thing claimed. 5 Dane's 
Dig., 516.

(1) The present statute in relation to replevin is as follows: "Whenever any 
goods or chattels shall have been wrongfully distrained, or otherwise 
wrongfully taken, or shall be wrongfully detained, an action of replevin may 
be brought for the recovery of such goods or chattels, by the owner or person 
entitled to their possession." Purple's Statutes, p. 868, Sec 1. Scates' 
Comp., p. 266.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.

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