I do not see in what manner a person who had possession of money, Mr. Saurin. By a plea of property, he has a special property in the goods till the lien is discharged(a). The practice of bringing replevins in such cases is sanctioned by long usage; the question has arisen frequently in the court of King's Bench. Mr. Saurin suggested that his Lordship, upon conferring with the Lord CHIEF JUSTICE, Would find it to be considered as settled. The Lord CHANCELLOR. I shall inquire into it. It is absolutely necessary that it should be settled in what cases this writ should issue. I apprehend the officer who issues the writ is responsible for its being issued upon a proper allegation: formerly the suggestion which is always given to the officer, and which is the ground on which the writ is issued was very commonly verified on oath it is not the sheriff who is to blame; he must execute the writ; but the officer ought not to make out a writ in a case where if made out it would be quashed (a) Quere, is the effect of the lien more than to prove the detention not to be a conversion? but it would seem not to prove the goods to be the property of the person detaining under such lien against the general owner, upon a plea of property; for if such evidence would warrant a finding, that they were the property of defendant, plaintiff could not afterwards even by a tender of the amount of the lien recover the goods; as this finding would be ever after conclusive for defendant in another replevin or in trover or trespass. 1804. Ex parte CHAMBER LAIN. 1804. Ex parte The cursitor stated the practice at his office to be, to procure a statement of the nature, number, quality, &c. of CHAMBER- the goods, and that the same were taken and unjustly detained, and that the cursitor then issues the writ on the credit of the party applying. LAIN. No rule.(a) (a) See next Case. April 28. in only lies where there SHANNON IN REPLEVIN v. SHANNON. Writ of replev. MR. BELL had obtained a conditional order for an attachment against the plaintiff for an abuse of the writ has been an ac- in replevin, in issuing and executing it in such a case as the tual taking out of the possespresent, and for restitution of the goods taken. The affision of the davit of the defendant, William Shannon, on which the party suing it. But it lies upon rule was made, stated that a writ had issued to the sheriff any taking, and not merely of the county of Down to replevy one mahogany desk, &c. upon a distress. that the said goods were the property of the defendant, (he having bought them) and were in his possession at the time of the taking, and that they were not taken as a distress for rent. That the plaintiff, Samuel Shannon, who is the defendant's father, is far advanced in years and become weak in understanding: that he had been seduced from the defendant's house where he had before resided, to the house of one Francis Moore, who employed an attorney to endeavour to get the goods in question. The affidavit then stated the circumstances of the taking and carrying away of the goods; and that a bill had been filed in the Exchequer at the suit of Samuel Shannon against defendant, to impeach certain deeds under which the defendant claimed to hold these goods. On the part of the plaintiff were read, the affidavit of Francis Moore and of Mr. John Norman the attorney for the plaintiff, which stated the belief of the deponent that the goods were the property of the plaintiff Samuel Shannon, who had been obliged to leave the house of the defendant, (his natural son) from the ill treatment he received there: that the plaintiff had had the goods in his possession while he lodged in the defendant's house, and that when he quitted the house, defendant wrongfully detained them. And Mr. Norman swore that having stated these facts to eminent counsel, he was advised to take this proceeding by replevin. Mr. Saurin, for the plaintiff, referred to the authorities already cited in Chamberlain's case and the usage in this country: and observed that as trespass may be brought upon a constructive taking founded on a detention without right, so also might replevin.(a) Mr. Bell for the defendant. Replevin is founded solely on a taking by distress; 3 Bl. com. 146. The Lord CHANCELOR (after observing that no taking (which is the foundation of replevin) was suggested in this case, and that it was not denied on the part of the plaintiff that the bill in the Exchequer related to the same goods) proceded. (a) In Nightingale v. Adams, it was ruled on evidence that replevin lies not of goods taken beyond seas and afterwards brought into England: which seems to make the actual taking essential: 1 Show. 91. 1804. SHANNON V. SHANNON. 1804. SHANNON V. SHANNON. : I have, in consequence of what passed the other day (a) conversed with the Lord Chief Justice on this subject; and he thinks (and it is the opinion of the other judges as he informs me) that the use of the writ of replevin in cases like the present is a crying grievance the courts of law are but into a difficulty: they do not know how to deal with it. How is a party to be put into the situation he ought to be in when a right to property is to be tried? the first evidence of property is possession, and that you take from him in the first instance, and you throw the onus of proving title upon him, on whom, as having the prima facie title, posession, that onus ought not to be thrown. The defendant in this case may have conducted himself extremely ill, but the law has provided certain remedies adapted to certain cases; and upon the affidavits which are made on his behalf, it appears that his remedy is either detinue or trover. Here is a son-a natural son it is said, who has got deeds of gift (perhaps fraudulently) of his father's property: the father having resided in the house of his son where the goods were, quits the house, and demands the goods. The goods were in his son's possession all along; at least the possession was equivocal, and that is not a case to which the writ of replevin can be applied; it must be to the case of an unequivocal possession, and of a taking; it would otherwise not be reasonable; for if there had not been a taking from the plaintiff, but that the defendant had the goods in his quiet possession by other means, the law presumes that they are prima facie the property of the defendant, and there is no reason why it should in such case give a writ to change the possession in the first instance against such presumption of property. It is much fairer, to throw the onus on the person who has not had the possession than on him who has had it. (a) Vid. Ex parte Chamberlain, ante p. $19. On the other hand, what has been said by defendant's counsel would confine it too much; it is an action founded upon any taking by the party. The writ is founded on a taking, and the right which the party from whom the goods are taken has to have them restored to him, until the question of title to the goods is determined. The person who takes them may claim property in them, and if he does, the sheriff cannot deliver the goods until that question is tried: but that claim of property can be made only where there has been a taking: and it appears to me that the writ of replevin was calculated in such cases to supply the place of detinue or trover, and to prevent the party from whom the goods are taken, being put to those actions, except where the other can shew property. But if this writ could be thus used, I do not see why it was necessary ever to bring detinue or trover. I am always sorry to hear Mr. Justice BLACKSTONE'S Commentaries cited as an authority: he would have been sorry himself to hear the book so cited: he did not consider it such. His definition of the action of replevin is certainly too narrow: many old authorities will be found in the books of replevin being brought where there was no distress.(a) As the practice has existed in this country, of issuing the writ in cases like the present, I shall not grant the attachment in this case, provided the goods are returned and the costs of this motion paid. (a) Replegiare estrem apud alium detentam, cautione legitima interposita, redimere. Spelm. Gloss. 485. quant les biens ou chattels d'auscun sont prises il avera per common ley un breve hors de Chancery commandant, &c. Doct. plac. Replevin. 313. Replevin lies of all goods and chattels unlawfully taken. Comyn. Dig. Replevin. (A) A replevin is a judicial writ to the sheriff, complaining of an unjust taking and detention of goods and chattels. Gilb. Repl.58 1804. SHANNON V. SHANNON. |