Bayard’s Notebook, 68
Court of Common Pleas of Delaware, Kent County.
May, 1794.
The plaintiff brought this replevin for goods which he had purchased at a public vendue and which were in possession of the defendant at the time of the sale. The defendant did not claim property upon the execution of the writ, and the goods were delivered to the plaintiff. At this term a motion was made that the goods should be restored to the defendant upon giving security.
[PER] CURIAM.
The remedy by replevin is different in this, country from what it is in England. It is here generally made use of to try the right to personal property. A person who has
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never been in possession is allowed to bring replevin to try his right to property which he claims. But in extending this remedy, it becomes us to take care that it is not abused. It would be a great abuse if the possessor of property were suffered to lose the benefit of his possession through ignorance or even some degree of neglect. The remedy should never vary the right. The possessor of property may rest upon his possession alone and throw the onus probandi on the claimant. We therefore consider that a defendant should be allowed to come in on the return of the writ and, upon giving security, to have the property restored.
Restitution awarded upon giving security.
Fisher [for] plaintiff. Ridgely and Clark for defendant