REPLEVIN (delirrance de Ramps, eplegiatio). In the middle ages the performance of legal duties was enforced by taking the person, the lands, or the goods of the defaulter into the custody of the party authorised to enforce the performance of such duties. When such a taking was effected, the party was said to be distrained (districtus, put under compulsion), by his body, his lands, or his goods, to do the act in respect of which he was supposed to have made default. [DISTRESS.] Upon a distress being effected, the body, land, or goods, as the case might be, of the distrainee remained in the custody of the distrainor until the act for which the enforcing of the distress had been made was performed : unless the distrainee brought the question of the legality of the taking before a competent tribunal, in which case he might either await the result of his legal proceedings, or, if he was desirous of obtaining a more speedy liberation of the thing distmined, be might replevy it by giving a pledge or security to replace it in the custody of the distrainor in the event of the legal decision being in favour of the latter.
The alleged defaulter might contest the legality of the taking in an action of trespass. [Tile-grass.] But in this form of action he could recover damages only. lie would not be entitled to the liberation of his body, Lands, or goods, as the case might be, pending the suit ; nor indeed when the suit had terminated in his favour, could he by any proceeding which could be resorted to in the action of trespass be relieved from the distress. The remedy by which a party was to recover his liberty or the property distrained, and also damages for the temporary detention, was an action of replevin. Where the person of the plaintiff was taken, his remedy was by an action of replevin in a peculiar form, which, taking its denomination from the writ by which it was commenced, was called de herniae replegiando. This proceeding was however surrounded by so many difficulties, rendered perhaps indispensable by the necessity of preventing criminals from using it as a means of evading justice, that it has now become obsolete io England, parties preferring to obtain their discharge by the more summary process of habeas corpus. [HABEAS Untrue.] The great mass of the
cases of homine repkgiando in the old law books arose upon the seizure and detention of persons whom the parties seizing claimed as their fugitive villeins [VILLEIN], and this process was frequently resorted to in Jamaica and other slave colonies. The seizing of the lands of a defaulter by way of distress has long ceased to bo practised.
Formerly not only lands but incorporeal hcreditaments were the subjects of replevin, of which a remarkable instance occurred in the reign of Edward III. (` Parliament Rolls,' vol. i., 45.) The third form of replevin, and the only one now in use, is replevin of goods, called in the old statutes replegiari de areriia, cattle (in law Latin, sveria) being the species of goods which usually formed the subject of a distress.
If the goods of a party were taken out of his possession against his will, he was entitled to a writ of replegiari facias, by which the sheriff was required to cause the goods to be replevied, that is, restored to the owner upon his giving pledges for the prosecution of his action, and for the return of the goods to the distminer in case a return should be adjudged. As the right of the party from whom the goods are taken to have the possession restored to lam by replevin, depends upon the property belonging to him—if the taker of the goods claim them as his own property, the power of the sheriff is suspended, until the party has sued out a writ de proprietctte probandd, by which the sheriff tries whether the goods are the property of the plaintiff or of the defendant ; and if they are found to be the property of the plaintiff, then to replevy them ; if of the defendant, the plaintiff's claim to be restored to the possession of the goods remains in suspense until the termina tion of the action.