Barry v. O'Brien

Colt, J. In order to maintain his action, the plaintiff in replevin, where the issue raises the question of title, must show both property in the goods taken, and the right of immediate and exclusive possession. If he fails to establish his right of possession, he fails to establish his title as against the defendant, as much as if he failed to prove his general or special ownership ; and from the nature of the case, the verdict in his favor must leave the ownership unsettled. A return of the property as a general rule follows of course. If the defendant be not the true owner, he may still be accountable over for it to such owner. And the burden is on the plaintiff to show sufficient reason for refusing the order for a return. This he may do by showing that the title of the defendant, or his right of possession, has terminated since the commencement of the suit, or that the property has in fact gone to the possession of the true owner. Dawson v. Wetherbee, 2 Allen, 461. Johnson v. Neale, 6 Allen, 227. Collins v. Evans, 15 Pick. 63. The pleadings in this case put in issue the plaintiff’s title and right of possession. The trial was had upon that issue. The judge instructed the jury, in substance, that the plaintiff must satisfy them, both that he was the owner, and that he was entitled to the possession of the goods before action brought, and the finding of the jury was for the defendant on the last proposition, leaving the question of ownership, as to which there was conflicting evidence, unsettled by the verdict. In this there was no irregularity, because the question of ownership was immaterial, so long as the jury was satisfied that the plaintiff was not entitled to the possession as against the defendant. [522] Upon the case presented, the plaintiff, in opposing an order for a return, fails to bring himself within any of the exceptions to the general rule, which requires a return when the verdict is for the defendant upon the issue of property and right of possession. Simpson v. McFarland, 18 Pick. 427. Exceptions overruled.