Vanderbilt Law Review


J. Allen Smith

First Page



The Right to Possession: In Shirley v. State' the Supreme Court of Tennessee held that a county court clerk could not be required to return money illegally gained by participation in a gambling game, which money had been confiscated by the sheriff and turned into court. Despite a theoretical difficulty arising from the absence in Tennessee of a statute authorizing forfeiture of gambling funds, the decision invoked the equitable principle that courts will not assist persons violating the law. For its result, the court relied in considerable measure on the New York case of Hofferman v. Simmons, which involved a replevin action to recover money seized in a gambling game. The New York court had reasoned that since in New York replevin is a possessory action in which the plaintiff must show a possessory right recognized by law, the courts would not give their sanction to "titles and possessory rights founded only on law breaking." The Tennessee Supreme Court approved essentially the definition of replevin as given by the Court of Appeals of New York, and apparently treated the action in the Shirley case as equivalent to one of replevin though it actually arose as a petition in criminal court.