A. replevin does not lie for goods taken in execution, or for goods seized for a debt to the crown. In a very intemperate speech, addressed by Hyde, afterwards Lord Clarendon, to the House of Lords, upon a charge against the barons of the Exchequer, for enjoining the sheriffs of London not to execute a writ of replevin of goods seized by the officers of the custom-house in respect of unpaid tonnage and poundage, he is stated to have said, in the course of his argument, " We all know a replevin lies against the king, if the goods be (be not?) in his own hands." (` Rushworth; part 2, vol. H., 1361.) Though this strange assertion has been regularly transcribed by succeeding writers, it appears to be altogether unfounded. The replevins sued out for goods seized in respect of tonnage and poundage would issue against the officers as for goods seized by them in respect of debts claimed to be due to the crown. But goods seized for the king's debts cannot be replevied without the special mandate of the king or of the barons of the Exchequer. Still less could replevin be brought in respect of goods in the actual possession of the king, and upon au allegation of their having been wrongfully taken by him.
Replevin does not lie for goods taken in a foreign country, though afterwards imported here.
If upon a distress taken by the superior landlord upon premises in the possession of an under-tenant, the mesne or intermediate tenant puts his cattle in the place of those distrained, as by law he was allowed to do, be might replevy the goods so substituted, though the latter were never distrained.
Replevin lies notwithstanding an express agreement that the land lord shall be at liberty to distrain and hold the goods against pledges (that is, notwithstanding a tender of pledges) until the rent be paid ; for goods cannot be made irreplevisable by the mere agreement of the parties.
Executors may maintain replevin for the goods of the testator taken in his lifetime, and a husband may bring replevin alone without naming his wife, for the 'hoods of the wife taken before the marriage ; as the property in the goods passes to the executors, and to the husband respectively, notwithstanding the seizure and detention.
A person may in some cases support a replevin without being the owner of the goods, as where the plaintiff is the bailee of the goods taken. [BAILMENT; BLEDOE.] The writ of replegiari facias, which must have been sued out of the Court of Chancery, was attended with great inconvenience and delay at a period when the chancery followed the person of the king, and hence it was provided by the statute of Marlbridge, (1267) that the sheriff should, after complaint made, deliver the goods without hindrance or refusal of him who took them, and by 1 and 2 Mary, c. 12,
every sheriff was required to appoint four deputies dwelling not above twelve miles distant from one another, to make replevies and deliverance of distresses. Under these two statutes distresses continued to be replevied, until quite recently ; when by the statute 19 & 20 Viet. c. 103, the powers of the sheriffs were transferred to the registrars of the County Courts [COUNTY Counsel, who now grant replevins, and take security from the replevisor for the prosecution of an action either in time County Court or in one of the superior courts to try the validity of the distress. This bond is taken under the statute 11 Geo. IL, c. 19, s. 23, requiring sheriffs and other officers having authority to grant replevin, in every replevin of a distress for rent, to take from the plaintiff and two responsible persons as sureties a bond in double the value of the goods distrained, with a condition for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained in case of a return being awarded.
By this statute this bond may be, assigned to the avowant (the party who took the distress in his own right), or to the person making cognizance (the party acknowledging the taking of the distress ors behalf of some other person), and the assignee may sue upon it in the event of the condition of the bond not being performed.
In the action which follows the replevin, the plaintiff declares against the defendant for the taking of the goods and chattels of the plaintiff, at such a time and in such a place, and claims damages. To this declaration the defendant may plead non cepit, whereby he admits that the goods belong to the plaintiff and denies the taking only ; or he may plead that the goods do not belong to the plaintiff, thereby admitting that he took and detained them.
But in ordinary cases, the defendant avows in his own right, or makes cognizance as bailiff to his employer, for rent, or for some other duty or cause, for which a distress is allowed by law [DIS TRESS], in doing which he may set up any ground of distress, though differing from that expressed at the time when the distress was made.
The plaintiff may reply to the defendant's plea as in other cases