REPLEVIN. 79 



In many jurisdictions the plaintitf may couple with the action of 

 replevin an alternative demand for damages, and if possession can not 

 be restored the value of the game is recoverable. A novel provision 

 in the Colorado law fixes the minimum value of each species of big- 

 game and of birds, and permits the commissioner of fisheries and game 

 or any warden to bring a civil action for recovery of the value of any 

 game killed, wounded, or held in possession in violation of law. The 

 Nebraska law has a similar provision, but does not fix the value of the 

 game. These States further direct that the writ of replevin shall 

 issue without bond and that the pendency of a criminal prosecution 

 for the same ofl'ensc shall not affect or stay the civil suit, nor shall the 

 action of replevin affect the right of seizure under other sections of 

 the acts. 



Action of replevin has frequentlj^ been resorted to by offenders 

 against game laws to recover property seized* by game ofiicials. In 

 1904 this action was instituted in Nebraska for recovery of three shot- 

 guns from a deputy" game warden, who had seized them while the 

 plaintiff and two others were illegalh' hunting prairie chickens. At 

 that time the Nebraska game law authorized seizure of the guns of 

 those found violating the law, but contained no provision for a trial 

 of the question of forfeiture. The district court of Boone County, 

 where the action was brought, found for the plaintiff' and decreed 

 restitution of the guns, holding that the section authorizing the seizure 

 and confiscation without a trial was unconstitutional. The warden 

 appealed to the supreme court of the State, where the judgment 

 of the district court was aflirmed. (McConnell v. McKillip, 99 

 N. W., 505.) 



In the same j^ear an action of replevin was instituted in Colorado 

 for the recovery of 300 deer hides, or for damages for their detention, 

 from a deputy game warden, who had seized them on the ground that 

 they w^ere held in possession in violation of a provision of the game 

 law requiring that any person who desired to keep such hides must 

 have an officer's invoice. The case was tried in the district court of. 

 Mesa Countv and resulted in a verdict against the warden for $350, 

 from which he appealed to the court of appeals, where the judgment of 

 the district court was reversed. (Hornbeke v. White, 76 Pac. , 926.)" 



In 1896 an action of replevin was instituted in Wisconsin for the 

 recovery of 12 gill nets, of the value of $60, which had been seized by 

 the o-anie wardens on the ground that thev were set in Lake Winne- 

 bago for the purpose of fishing in violation of the game law. A trial 

 by jury resulted in a verdict for the wardens. The case was appealed 

 to the supreme court, which affirmed the judgment of the lower court. 

 (Bittenhaus v. Johnston et al., (W N. W., 805.) 



«See also People v. Johnson, 88 Pac, 184. 



