Replevin (law Lat. re, back, and plegium, pledge), a redelivery of a thing to the owner, upon pledges or security; the taking from some holder property which the taker claims, he giving back pledges to establish his right, or, if he fails in this, to return the property. The institution of this very important action is ascribed to Glanvil, chief justice to Henry II.; and it was originally the peculiar and exclusive remedy in cases of wrongful distress. The object was to prevent the beasts of the plough, cattle, and other goods of the tenant in arrear from being unjustly or excessively distrained by the landlord, lest, as Littleton observes, "the husbandry of the realm and men's other trades might thereby be overthrown or hindered." At the common law a distress (which implies both the thing taken and the manner of taking it) was considered merely as a pledge or security for the rent, for damage feasant, or for service due from the tenant to his superior lord, and a means of enforcing its payment or performance. It could not be sold or disposed of by the distrainor, but he was compelled to hold it as a pledge until payment or other satisfaction was made.
For this reason beasts of the plough and the tools of a man's trade could not be distrained, lest by depriving him of these he should also be deprived of the ability to redeem them; but the statute 2 William and Mary, 1, c. 5, authorized the distrainor, with the assistance of the sheriff, to have the distress appraised by competent appraisers, and sold for the highest price which it would bring, unless regularly replevied by the tenant or owner within five days after seizure. There were two ways in which a distress could be replevied, one according to the common law, and the other by a statute. The common law allowed the owner a writ de replegiari facias, which was sued out of the court of chancery and directed to the sheriff of the county in which the distress was taken, commanding him to redeliver it to the owner upon receiving sufficient sureties therefor, and afterward to determine the ownership and do justice as to the matter in dispute between the parties, in his county court. The statute of Marlbridge, on the other hand (52 Henry III., c. 21), provided that, without suing out a writ, the sheriff or any of his deputies (of whom four were appointed in each county for the express purpose of making replevins) should, immediately upon complaint being made to him, proceed to replevy the goods.
The owner was then obliged to give satisfactory security to two ends: first, plegios de prosequendo, or pledges to prosecute his suit to final judgment; and second, plegios de re-torno habendo, or pledges to return the distress again to the distrainor, if the right should be determined against him. These pledges were discretionary, and the sheriff was responsible for their sufficiency; and in addition to them the statute required a bond with two sureties for double the value of the goods taken, also conditioned to prosecute the suit and return the goods. This bond was to be assigned to the avowant or person making cognizance, on request to the officer, and if forfeited it could be sued by the assignee. If the sheriff neglected to take a bond, or if he accepted insufficient pledges, the party might have an action against him and recover double the value of the goods distrained, but no more. The owner of goods distrained might replevy them although his grant by deed contained a special condition that the distress should be irreplevisable, and that the landlord should keep it as a gage or pledge until the rent were paid; because it was held to be incompatible with the nature of a distress that it should be irreplevisable.
The sheriff, on receiving the required security, was at once to cause the distress to be returned to the party from whom it was taken, unless the distrainor himself claimed the goods as his property; for if they were, the law permitted him to keep them, irrespective of the manner in which he had regained possession. If therefore the distrainor claimed any such right or property, the party replevying was obliged to sue out another writ called a writ de proprietate probanda, by which the sheriff was to determine, by an inquest, who was really the owner of the property before the distress was levied thereon. If it was decided against the claim of the distrainor, the sheriff proceeded to replevy as if no such claim had been made; but if his claim was found to be good and valid, the sheriff could proceed no further, but was to return the claim to the court of king's bench or common pleas, to be there prosecuted and finally decided. The goods, in ordinary cases, being delivered back by the sheriff to the party replevying, he was then compelled to prosecute his suit or action of replevin in the county court, though either party might remove it to the superior court of king's bench or common pleas; and indeed, to save trouble and delay, it was usually carried up in the first instance to the courts of Westminster hall, because if, in the course of proceeding in the county court, any right of freehold came in question, the sheriff could proceed no further.
Upon action being brought, the distrainor, who was now the defendant, made avowry; that is, he avowed taking the distress, and set forth the right in which and the cause for which he took it, as for rent in arrears, damage done, or other cause; or if he justified in another's right, as bailiff or servant, he was said to make cognizance; that is, he acknowledged the taking, and claimed that it was legal as being done at the command of one who had a right to levy the distress; and upon the legal merits of this avowry or cognizance the cause was determined. If the action was decided in favor of the plaintiff, and the distress declared to be wrongful, he was entitled to keep the goods which he had already got back into his possession, and in addition should recover damages for the wrongful seizure and detention; but if the defendant prevailed, he should have a writ de retorno habendo, by which the distress was returned into his possession irreplevisable, to be sold or otherwise disposed of, as if it had never been replevied.
If the debtor had in the mean time disposed of or concealed the distress, so that it could not be found, execution issued against his other goods, and for want of them against his body in the nature of a writ of capias. "While distresses continued to be held as mere pledges, if the former owner, after judgment against him, offered the distrainor the arrearages or other damages due, and he refused thereupon to deliver up the distress, the plaintiff might bring an action of detinue, and by that means recover its possession. If, while a replevin for a former distress was pending, a man distrained again for the same rent or service, the party was not obliged to bring another action of replevin for the second distress, but could have a writ of recaption and recover the goods with damages for the distrainor's contempt of the process of the law. - Formerly a mere possessory right was not sufficient to entitle a party to maintain replevin; but now it is sufficient if the plaintiff can prove a general or special property in the goods, with the right of immediate and exclusive possession, either as mortgagee, owner, agent, or bailee, without actually having such possession at the time.
Though replevin was formerly confined to cases of wrongful distress, it is now the proper form of action by which to recover the specific thing taken, in all cases where goods have been tor-tiously taken or detained, whether by distress or in any other manner, together with damages for the detention, unless the taking and detention can be justified or excused; and it is one of the most important and frequently used modes of legal remedy. The forms and manner of proceeding, with some slight alterations, remain the same now as formerly, as far as the redelivery of the goods to the party claiming them, the giving of bonds with sureties in double the value of the goods, the prosecution of the action, and the final judgment and execution are concerned. This action will lie for goods taken in execution, provided the person bringing it against the officer who takes the goods from another by virtue of the execution has a property, general or special, in them, and a right to reduce them into his actual possession; but no replevin will lie in favor of the defendant in execution or attachment, to recover possession of goods seized under such execution, unless they are exempted by law from being so taken.
In some cases replevin for property taken for taxes is forbidden.