Replevin — Construction of statute. At common law replevin does not lie for goods taken on a valid execution as the property of the judgment debtor, whether the property be taken from the possession of the judgment debtor or otherwise, Smith v. Huntington,3 N.H. 76; Eastman v. Maloney, Strafford, Feb. Term, 1822, cited in Smith v. Huntington. Our law was the same in regard to goods taken on mesne process. Ib.
By statute of June 30, 1825, it was provided that the action of *Page 622 replevin might be maintained in favor of a third person claiming property which had been attached on mesne process. This law remained substantially the same until the act of July 1, 1873. By this statute — Laws of 1873, ch. 21, sec. 1 — it is enacted as follows: "When any goods or chattels are unlawfully taken or detained from the owner or person entitled to the possession, or when any goods or chattels attached on mesne process are claimed by any person other than the defendant in the suit in which they are so attached or taken, such owner or other person may maintain replevin therefor."
The plaintiff's claim is, that, by this statute, goods taken in execution, which are claimed by a person other than the debtor, are embraced within the terms "unlawfully taken or detained," in the first clause of the section.
If this were so, and it was considered by the legislature that those words should embrace such a case, I can think of no possible reason why it should have been thought necessary to provide specially for goods taken on mesne process, and claimed by a person other than the debtor. If those words were sufficient for the case of goods taken on execution, they must be equally so for goods taken on mesne process.
On the other hand, when the legislature provided specially for the case of goods taken on mesne process, it is to me incredible that it should not also have extended the provision to the case of goods taken on execution, if it intended that such should be the law.
For these reasons it appears to me that by this statute the action of replevin cannot be maintained by a third party claiming goods that have been seized on execution.