
    Cullum vs. Bevans.
    Appeal from Baltimore county court, from q, judgment rendered in favour of the defendant in that court, in an action of replevin.
    The cause, which is fully stated in the opinion delivered by this court, was argued before Buchanan, Ch. J. Martin, Stephen, Archer, and Dorsey, J. by
    Replevin in t!iIt statb*, is a much more extensive* re-than it is in England.
    
    In England, the* toi thus taking from the plaintiff, is thc£ttfoftheft?* twin, and if put m is»ue, must }>ts proved by the plaintiff.
    In this state it is the proper remedy in all cases where a plaintiff has a right to the possession of personal property.
    In such an action in this btjate the plea of property in „the defendant throw* the whole burthen ag proof on the pluintiif. ’ ^
    
      
      1?. Johnson, for the Appellant,
    who, having abandoned the first bill of exceptions taken in the court below, referred to Robertson vs. French, 4 East, 130, and 1 Phill. Evid. 118, (123,) in support of his objection to the opinion of the court below, as stated in the second bill of ex-, captions. He contended, that the plea of' property in the defendant was sufficient evidence of possession in the plaintiff, and that possession was proof of property without any pther evidence to establish the plaintiff’s title,’
    No counsel appeared for the appellee.
   Dorsey, J.

delivered the opinion of the court. Twq. bills of exceptions were taken in this case, the first of ■p/hich, being abandoned by the appellant’s counsel, the4 court are relieved from the necessity of giving any opinion upon it. The question, presented by the remaining exception, is one, oh which if any doubt had existed about it, it is to be presumed must have been frequently presented for adjudication to the several courts of law of original jurisdiction in this state; ar«J in at least iwo of the judicial districts, decisions have been made in unison with the opinion of the court below, from which no appeal was ever, made; The case at bar has arisen on an action of.replevin, instituted in Baltimore county court, by the' present appellant, against the appellee, for the recovery ofa daybook and ledger. The appellee appeared to the suit, and plead property in himself; to which plea a replication was filed, and the issue joined in the usual form. Upon the trial, neither party offering any testimony, the plnihfiff’s counsel’ prayed the court to instruct the jury, that upon the pleadings in the cause he was entitled to recover. This instruction being refused, the appellant appealed, and alleges, that by such refusal- the court below committed an error, which this court-are now called on to revise an'd correct. In support of this appeal it has been urged (by a species of reasoning more specious than solid,) that possession of a chattel is prima fade evidence of property; that the appellee, having plead' property in himself, .thereby admits the faking charged in' the declaration, and conse.que.ntly, the original possession to have been in the appellant; and that such .original possession is sufficient evidence of title to recover, unless a better right in the defendant shall be shows, by proof. If this case were pending in an English court of judicature, this'ingenious .system of reasoning might hot be susceptible of easy refutation; although, if it be sound ’doctrine, it caunot well be understood how the plea of property in a stranger can be sustained as a plea in bar or justification of the invasion of a plaintiff’s possession, and the taking from him goods by a defendant, a mere volunteer, 'deriving no right or authority from such stranger. That such a plea in bar is a good defence, and if true; defeats the plaintiff’s right of recovery, is not now to be questioned. But to decide the question now before the court, it is not necessary to make an elaborate research into English authorities; The action of replevin; as prosecuted in this state, gives a much more extensive remedy than can be had in the same kind of proceeding in England. There, the tortious taking from the plaintiff by the defendant is the gist of the action, and no such action can be sustained but upon actual proof thereof; if the fact be put in issue by the pleadings. Not so in the state of Maryland. Here it is an almost universal remedy, 'applicable to all cases, where the plaintiff has a right to demand the possession of goods ’or chattels withhéld by another, ánd which are within the reach of the process of the court; Although the form of the declaration has not been changed, the allegation of a wrongful taking is a mere fiction, generally false in point of fact, and evidence of nothing in support of the plaintiff’s claisn. On the contrary, the possession of the defendant, admitted by instituting the suit against him, is •prima fade evidence of ownership, and the plea of property in the defendant throws the whole burthen of proof upon the plaintiff.

That the view which has been taken of this subject is the correct one, is clearly evincéd by rcferencé to the act-of assembly of 1785, ch. 80, sec. 14; which directs the court to award to the defendant a return of the goods replevied, in all cases save where it shall appear that “the defendant’s possession was forcibly or fraudulently obtained, or that the possession, being first in t’ne plaintiff, was got or retained by the defendant, without proper authority or right derived from ttie plaintiff.” Such a •provision never would have been incorporated in that act of assembly, under a supposition of an actual wrongful taking from the plaintiff’s possession, nor unless the presumption of right, both in law sjyl in fact, had been im« puted to the defendant. Indeed, it is apprehended, that the pleadings in this catísé afford conclusive evidence of the truth, of the position which has been assumed. No principle in the law seems more universal, or better established) than that the onus probdrtdi rests on the party who maintains tlie affirmative side of the issue. On what then is the,issue joined in tills case? It is not on the defendant’s pleá of property) but upon the replication bled by the plaintiff, asserting the right of property to lie in himself) and tendering art issue ou that .point. He must therefore support his allegation by proof.

We concur in the opinion delivered by tlie court below, kud affirm their judgment:

Judgment affirmed;  