A writ of replevin omitted the words "original writ" from the clause "provided the same is not taken, attached, or detained upon original writ, mesne process, warrant of distress, or upon execution as the property of the said ____" in the form prescribed by Gen. Stat. R.I. cap. 195, § 16. Held, that the writ was fatally defective. Held, further, that the plaintiff should be allowed to amend on proper terms. An officer's return is evidence of the facts stated in it only so far as the return is responsive to the writ. Hence when to a writ of replevin an officer made return that he found the goods in the town of II.: Held, that the return was not evidence that the goods were found in the town of H. In replevin a plaintiff after demand is not obliged to delay serving his writ that the defendant may satisfy himself that the demand is rightfully made. A chattel mortgage is recorded under Gen. Stat. R.I. cap. 165, § 9, when it is left for record in the proper office.
PER CURIAM.
We think the writ without amendment is fatally defective for want of the allegations indicated in the third specification of the defendant's motion to dismiss and in his motion in arrest of judgment. The first and last exceptions are therefore sustained. We think, however, that the plaintiff ought to have leave to amend, if he asks for it, on terms.
We think an officer's return is evidence of facts stated in it in so far, and only in so far, as it is responsive to the precept. The return is not responsive to the precept in our opinion in its statement that the property replevied was found in the town of Hopkinton. The exceptions therefore for refusals to charge according to the first and fifth requests are sustained.
However the rule may be in trover, where the gist of the action is tortious conversion, we think that in replevin the plaintiff, after demanding the property of the defendant, is not obliged to give the defendant opportunity to satisfy himself of the rightfulness of the demand before suit; but that, being entitled to immediate possession of the property, he may immediately replevy it, if the demand is not complied with. Exceptions for refusal to charge according to the second, fourth, and eighth requests are therefore overruled.
We think that a chattel mortgage is to be regarded as recorded within the meaning of Gen. Stat. R.I. cap. 165, § 9 (providing that the mortgage, without delivery of the mortgaged property, shall not be valid against any person but the parties to it unless the mortgage be recorded), when it is lodged for record with the proper recording officer at his office. 1 Jones on Mortgages, § 542. The exception for refusal to charge according to the eleventh request is therefore overruled. We wish to add, however, that in our opinion such a mortgage cannot be deemed to be either recorded or lodged for record when it is merely left with the recording officer with instructions not to record it, or not to record it until notified to do so.
The other exceptions are overruled. The judgment of the Court of Common Pleas is set aside, and the case remanded for new trial or further proceeding.
Exceptions sustained.