Windsor v. Boyce

1 Del. 605

• Court: Superior Court of Delaware
• Decided: July 1, 1858
• Status: Published

Opinion

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.