44;  Hurst  v,  Owennap,  2  Stark.  306;  W^bb.  v.  Fox,  7  Term.  R.  392,  224«


PLAINTIFF   MUST   HAVE   RIGHT   OF    POSSESSION.        Ill

and  taken  all  the  goods,  the  answer  was  regarded  as  a  sufficient
defense  for  the  sheriff."

§  107.  Right  to  present  possession,  does  not  depend  on
former  possession.  A  legal  right  to  the  possession  of  the  goods
at  the  time  the  suit  was  begun  has  been  frequently  held  to  be  all
that  is  essential  to  sustain  replevin.  But  what  circumstances  in-
vest  a  party  with  Ihis  right  remains  a  question  unsolved  by  the
statement,  and  perhaps  no  rule  can  be  given  which  will  apply  in
all  cases.  Where  the  plaintiff  asserts  the  right  to  present  posses-
sion, his  right  to  recover  does  not  depend  on  the  question  as  to
whether  he  had  the  possession  at  any  former  time,  but  as  to
whether  he  had  the  right  at  the  time  the  suit  was  begun."  So,
when  the  plaintiff  is  not  entitled  to  bring  suit  for  the  goods  with-
out prior  demand  for  the  possession,  and  does  begin  suit  without
such  demand,  he  is  not  entitled  to  possession  at  the  time  the  suit
was  begun,  and  cannot  succeed."  Any  fact  showing  that  the
plaintiff  in  replevin  had  no  right  to  the  immediate  possession
when  he  began  his  suit  is  a  complete  bar  to  the  action.^

"Bolander  v.  Gentry,  36  Cal.  109.
*^Stoughton  V.  Rappalo,  3  S.  6  R.  562;  Harlan  v.  Harlan,  15  Pa.  St.
513;  Shearick  v,  Huber,  6  Binn.  3;  Hunt  v.  Strew,  33  Mich.  85;  Herdic
V.  Toung,  55  Pa.  St  177;  Hatch  v.  Fov/ler,  28  Mich.  210;  Morgner  v.
Biggs,  46  Mo.  65.    Contra,  see  Cobb  v.  Megrath,  36  Geo.  625.
**  Alden  v.  Carver,  13  Iowa,  254.  See  Campbell  v.  Williams,  39  Iowa,
646.
