Definition
A second deliverance is a common law writ in replevin practice that allowed a plaintiff, after suffering a nonsuit or default judgment requiring return of the distrained goods to the defendant, to have those same goods redelivered to him upon giving fresh security. The writ effectively gave the plaintiff a second opportunity to prosecute the underlying replevin action rather than losing the goods permanently as a consequence of a procedural failure.
The writ operated as a statutory remedy. It did not represent a new cause of action on the merits but was a procedural mechanism to revive and continue the plaintiff's claim, subject to the plaintiff satisfying the court that he could prosecute it properly and would ensure the return of the chattels if again required to do so.
Common Confusion
Second deliverance is sometimes loosely associated with the broader replevin action itself, but the two are distinct. Replevin is the primary action to recover goods wrongfully distrained. Second deliverance is a derivative writ that arises only after a specific procedural failure in a prior replevin proceeding—it presupposes that a replevin action has already been initiated and lost on default or nonsuit, not on the merits. A plaintiff who lost on the merits could not obtain a second deliverance; the writ was limited to cases where judgment for return went to the defendant solely because the plaintiff failed to appear or prosecute.
Why It Matters in Research
Second deliverance is a procedurally narrow writ that appears almost exclusively in historical common law sources. Researchers will encounter it in English practice manuals, form books, and commentary on the writ system, particularly in discussions of replevin and distress. It is largely obsolete in modern American practice; the consolidated civil action replaced the old writ system, and no functional equivalent survives under modern rules of civil procedure in most jurisdictions.
When tracing replevin history, researchers should be alert to the temporal boundary: second deliverance as a working procedural tool belongs to the pre-code era. References to it in nineteenth-century American sources are generally descriptive of inherited English practice rather than active doctrine. After code pleading reforms, and certainly after the adoption of modern rules of civil procedure, the writ disappeared as a practical matter.
The Statute of Westminster II (13 Edw. I, 1285) is the foundational legislative source. Bouvier's reference to the statute of Westminster 2d, 18 Edw. I. c. 2, should be understood in context: historical citation practices varied, and the chapter references in early English statutes were not uniformly standardized across secondary sources. Researchers consulting Coke's Second Institutes (Co. 2d Inst. 341), cited in Bouvier, will find authoritative treatment of the statutory origin and scope of the writ.
Because the writ depended on the record of a former replevin action, researchers working with historical court records may find second deliverance proceedings filed as continuations of or supplements to original replevin files rather than as independent actions. Failure to appreciate this procedural posture can cause researchers to overlook or misidentify these records.
Historical Dictionary Support
Black's and Bouvier's are in agreement on the essential features of the writ: it arose after a default or nonsuit in a replevin action, it required the plaintiff to give the same security as in the original proceeding, and it was directed to the sheriff commanding redelivery of the goods. Both sources anchor the writ in Blackstone (3 Bl. Comm. 150) and Stephen's Commentaries (3 Steph. Comm. 668), the standard English practice treatises of the period.
Bouvier's entry, though truncated in available form, adds the significant detail that the writ was founded on the record of the former action and provides the statutory grounding in Westminster II as interpreted through Coke. This is useful because it clarifies the writ's derivative character and confirms that it was not a standalone original process.
Neither dictionary entry addresses American jurisdictional adoption in any depth, which is typical: by the time these dictionaries were compiled and reprinted widely in the United States, the writ was already historical rather than operational in most states. The silence on modern application is telling rather than accidental.
Jurisdictional Note
Second deliverance as a live procedural writ was an English common law remedy that American courts inherited but largely abandoned with the transition to code and then rules-based pleading. It does not appear as operative procedure in modern American jurisdictions. Researchers working on English legal history or pre-code American practice will find it; researchers working on modern replevin or claim-and-delivery actions should not expect a functional equivalent.