Opinion of the Court-Coleman, C. J.

the admission of evidence on the part of the defendant to show its own failure to comply with certain federal regulations, whereas in the instant case both the pleading and the evidence of the plaintiff bring the case squarely within the terms of the act of Congress, necessitating the application of the federal law. In other words, in the Burrus case the point involved was as to the propriety of allowing an amendment to the answer so as to permit of proof, while in the instant case it is merely a question of applying the act of Congress to the facts pleaded in the complaint and proven on the trial.

Nor is the case of Atlantic C. L. R. Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. 188, 61 L. Ed. 476, in point. The complaint in that case alleged that the line of railway upon which plaintiff was injured was owned and operated "wholly within the State of South Carolina." The railroad company filed an answer, admitting the allegation of the complaint. It appears from the opinion in that case that upon the second trial, up to the time the plaintiff rested her case, no claim had been made by defendant, and no facts had been pleaded or evidence offered from which it could be inferred that the deceased at the time of his death was engaged in interstate commerce, or that the federal employers' liability act (U. S. Comp. St. secs. 8657-8665) was in any way applicable to the case. Upon this (second) trial the defendant for the first time, in presenting its case, sought to show that the train which killed the deceased "was engaged in interstate commerce, and that the deceased was in this respect and otherwise engaged in interstate commerce." The trial court refused to admit the evidence, upon the ground that it came too late and did not tend to sustain any issue raised. The Supreme Court of South Carolina. (100 S. C. 375, 85 S. E. 372) sustained a judgment in favor of the plaintiff, and on error to the Supreme Court of the United States the writ of error was dismissed. In that case the court said:

"While it is true that the reports show that in St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, and in

Opinion of the Court-Coleman, C. J.

Toledo, St. L. & W. R. Co. v. Slavin, supra, the federal act was not specially referred to in the pleadings, yet they were in such form that the trial court, either without objection or over objection which the supreme court of the state refused to sustain, admitted testimony making it necessary to apply the federal act in deciding each case."

In the instant case the complaint showing the interstate character of the message, and the evidence on the part of the plaintiff being in accord therewith, the Mims case is authority for the applying of the act of Congress to the facts as pleaded and proven.

For the reasons given, it follows that the judgment must be reversed; and, since no judgment can be entered in favor of the plaintiff under the pleadings and evidence, judgment should be entered by the trial court in favor of the defendant.

It is so ordered.

Argument for Appellants

[No. 2446]

JOE AZPARREN, RESPONDENT, v. C. P. FERREL, AS SHERIFF OF WASHOE COUNTY, NEVADA; C. S. NICHOLS, AS UNDER SHERIFF OF WASHOE COUNTY, NEVADA; ALTHEA CARTER, AS DEPUTY SHERIFF OF WASHOE COUNTY, NEVADA; AND LESTER D. SUMMERFIELD, AS DISTRICT ATTORNEY OF WASHOE COUNTY, NEVADA, APPELLANTS.

[191 Pac. 571]

1. REPLEVIN-PLAINTIFF MUST BE ENTITLED TO IMMEDIATE POSSES

SION.

To maintain an action in claim and delivery, it is necessary for plaintiff to show that he is entitled to the immediate possession.

2. REPLEVIN-DOES NOT LIE TO RECOVER PROPERTY IN CUSTODY OF

LAW.

While replevin lies to recover personal property unlawfully detained, property in custody of law cannot be so secured.

3. REPLEVIN LIQUORS SEIZED FOR USE IN PROSECUTION FOR VIOLATING PROHIBITION LAW CANNOT BE REPLEVINED.

Where plaintiff, in transporting intoxicating liquor from one point in California to another, proceeded by the usual route, which lay in part through the State of Nevada, and was arrested, and the liquor being seized and held for use in the prosecution for violating the Nevada prohibition law, plaintiff cannot secure possession of the liquor by claim and delivery, but the prosecuting officers may hold the same until disposition of the criminal proceedings, for the common law as well as the common practice allows articles, which supply evidence of guilt of one accused found in his possession or control, to be taken by the officers of the law and held for introduction in evidence.

APPEAL from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Proceedings in claim and delivery by Joe Azparren against C. P. Ferrel, Sheriff of Washoe County, Nevada, and others. From a judgment for plaintiff and an order denying new trial, defendants appeal. Reversed, with directions.

L. D. Summerfield, District Attorney, and W. M. Kearney, Assistant District Attorney, for Appellants: The liquors were lawfully taken, having been seized

Argument for Respondent

by police officers on an arrest made for an offense committed in their presence, and being in custodia legis, judgment in replevin cannot be properly rendered. "It is a well settled doctrine of the common law that replevin will not lie for goods in the custody of the law, any interference with goods so held being considered an infringement of the prerogative of the court and a contempt thereof. The reason why property in custodia legis cannot be replevined is that to permit it to be done would be to interfere with the possession before the office of the law had been performed as to the process under which it was taken.” 34 Cyc. 1367. "Neither can one take the property from the custody of the other by replevin, or any other process, for this would produce a conflict extremely embarrassing to the administration of justice." Feusier v. Lammon, 6 Nev. 209; Buckley v. Buckley, 9 Nev. 373. Lemp v. Fullerton, 83 Iowa, 192; Allison v. Hern, 169 Pac. 187; Ring v. Nichols, 91 Me. 478; Allen v. Staples, 6 Gray, 491; State v. Barrels of Liquor, 47 N. H. 369; McDonald v. Weeks, 2 Tenn. Civ. App. 600; McKeen v. Colpitts, 39 N. B. 256.

The prohibition act of Nevada makes it unlawful to have intoxicating liquors on a public highway for any purpose whatsoever, and contains no reservation excepting shipments in interstate commerce. Stats. 1919,

sec. 7, p. 5.

Moore & McIntosh, for Respondent:

Property can come into the custody of the law only when taken in pursuance of a valid writ, issued out of the proper court and served by a duly authorized officer in the manner prescribed by law; or where an officer, acting within authority legally vested in him, makes a lawful arrest and after such arrest finds in the possession of the party arrested property connected directly with the crime for which the party is arrested. Replevin is the proper action, and the only proper action, to determine the right of respondent to transport the liquor

Opinion of the Court-Sanders, J.

from Chilcoot to Masonic, Calif., through the State of Nevada. The testimony discloses that it was his intention not to unload any portion or to use any portion of the liquor within the State of Nevada. Being uncontradicted, his testimony must be taken as true.

The arrest was without warrant and was not "for a public offense committed or attempted to be committed in his presence." Rev. Laws, 6953.

While it may not be necessary, the court should determine in the present action the question of unlawful arrest; when an arrest may be lawfully made; the question of unlawful search and seizure; when and how an officer may search either the person or the property of a citizen and seize his property. Fremont Weeks v. United States, 58 L. Ed. 382; Boyd v. United States, 116 U. S. 616; Bram v. United States, 42 L. Ed. 568; Ex Parte Jackson, 96 U. S. 727; United States v. Friedburg, 233 Fed. 313; Flagg v. United States, 233 Fed. 481.

Congress has reserved to itself and from the states the control of liquor which may be passing through any state and not intended for use in that state contrary to law. Clark Dist. Court. v. Maryland, 61 L. Ed. 326; Marengo v. State, 78 South. 450; Leisy v. Harden, 34 L. Ed. 136.

By the Court, SANDERS, J.:

This is a proceeding in claim and delivery to recover the possession of twenty cases of intoxicating liquors and one bottle of "Sunnybrook" whisky. The cause was tried before the court without a jury. The defendants appeal from the judgment in favor of plaintiff, and from an order denying their motion for a new trial. The undisputed facts are as follows:

One Joe Azparren, while traveling by automobile upon the public highway in the night-time, on June 27, 1919, was halted by C. P. Ferrel, sheriff of Washoe County, and his deputies, Carter and Nichols, at the point of two sawed-off shotguns and an automatic pistol in the