Opinion
February 10, 1880.
Replevin. Plea non cepit, also that the property in the replevied personalty was in the defendant. Held, that under this plea the defendant was entitled to prove a lien on the personalty for repairs to it made by him and not paid for.
EXCEPTIONS to the Court of Common Pleas.
Albert R. Greene, for plaintiff.
B.N. S.S. Lapham, for defendant.
This is replevin for a buggy. The defendant pleads non cepit, and also that the property in the buggy was in himself and not in the plaintiff. The plaintiff replies that the property "was not in the defendant, but in himself the plaintiff as in his declaration averred." At the trial it appeared that the buggy belonged to the plaintiff, but had been committed by him to the defendant to be repaired. The defendant offered testimony to show that he had repaired and had not been paid for repairing it, and that he was therefore entitled to a lien on it, or a right to retain it, for what was due to him. The plaintiff contended that the defendant having pleaded that the property in the buggy was in him, ought not to be permitted to show in support of his plea that he was entitled to anything less than the entire property. The court, however, admitted the testimony and refused to instruct the jury, as the plaintiff requested, not to find for the defendant unless they found that the general title or ownership was in him. The jury found the second plea in favor of the defendant. The question submitted to us is, whether the defendant was entitled to the verdict in his favor upon proof that he had a lien on the property replevied, or a right to retain it, for what was due to him for repairing it. We think he was. Murray v. Paisley, 1 Yeates, 197; Lowry v. Hall, 2 W. Serg. 129; Amos v. Sinnott, 5 Ill. 441. Indeed the cases hold that, under pleading like that in the case at bar, the burden is on the plaintiff to show property, either general or special, in himself, such as to give him the right of present possession; proof of general ownership, however, being prima facie proof of the right. 2 Greenleaf on Evidence, § 563; Redman v. Hendricks, 1 Sandf. 32; Britt v. Aylett, 11 Ark. 475; Harwood v. Smethurst, 29 N.J. Law, 195; Lester v. McDowell, 18 Pa. St. 91; Walpole v. Smith, 4 Blackf. 304; Bogard v. Jones, 9 Humph. 739; Berthold v. Holman, 12 Minn. 335; Rockwell v. Saunders, 19 Barb. S.C. 473; Collins v. Evans, 15 Pick. 63.
Exceptions overruled.