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33 N.C. L. Rev. 57 (1954-1955)
Equitable Replevin

handle is hein.journals/nclr33 and id is 67 raw text is: EQUITABLE REPLEVIN M. T. VAN HECKE* Detinue and replevin, including their modern equivalents such as the code action to recover the possession of a chattel and claim and delivery proceedings, are most effective in bringing about an actual delivery or recovery of a chattel wrongfully withheld from the plaintiff when the defendant offers no resistance or when he resists only because of a dis- pute as to the right to possession. Difficulties arise, however, when the sheriff cannot find the article or when the defendant conceals it and refuses to surrender it to the sheriff, even after the defendant has re- tained possession pending trial by giving bond. Then the action or proceeding is likely to turn into one for damages in the amount of the chattel's value. Rather than run the risk that these common-law and statutory remedies may thus fail to be effective to obtain the chattel itself, a plaintiff who needs the article in specie and who fears that the de- fendant will frustrate the sheriff's efforts may regard equity as likely to be more successful through its in personam order that the defendant deliver the chattel to the plaintiff, under pain of punishment for contempt of court if he disobeys. In what situations and on what criteria have such orders in equity, herein called equitable replevin, been awarded to compel specifically the return or delivery of chattels wrongfully withheld from the plaintiff ?1 The reported cases add up to 109 in which equitable replevin has been granted, and 41 in which resort to that remedy has been denied, including decisions on demurrer and after trial. This article explores the relative adequacy of the equitable and other remedies in relation to each of the various types of chattels and considers the significance of some statutory changes. It does not deal, except incidentally, with the rescission or specific performance of contracts in- volving chattels or with injunctions to prevent the disposition of chaftels. These situations involve factors beyond the present inquiry. I THE CHATTELS AND THE ADEQUACY TEST A pretiurn affectionis. The classic subject-matter of equitable re- plevin has been the chattel having a price of affection, a value to the * Professor of Law, University of North Carolina School of Law. For other discussions, see RESTATmET, TORTS §§ 938, 946 (1939) ; McCLIN- TocK, EQUITY § 45 (2d ed. 1948) ; 1 POMMROY, EQUITY JURISPRUDENCE § 185 (5th ed., Symons, 1941).

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