Opinion of the Court-Burnett, J. strued with reference to the intention of the parties. In doing this, it is allowable to depart from the letter of the condition to reject insensible words, and to supply obvious omissions." In the case of Coles v. Huleme (8 Barn. & Cress. 568), referred to in the California case, the action was commenced upon a bond, the condition of which recited an indebtedness in various sums of money, which were stated in pounds sterling. In the obligatory part of the bond the word "pounds" was omitted. In holding the bond good, Lord Tenterden, Chief Justice, said: "In every deed there must be such a degree of moral certainty as to leave in the mind of a reasonable man no doubt of the intent of the parties. The question in this case is whether there is in this bond, that degree of moral certainty as to the species of money in which the party intended to become bound. I thought at the trial there was. The obligatory part of the bond purports that the obligor is to become bound for seven thousand seven hundred. No species of money is mentioned. It must have been intended that he should become bound for some species of money. The question is, whether from the other parts of the instrument we can collect what was the species of money which the party intended to bind himself to pay." And looking at the recitals in the conditions of the bond, and seeing that they were to pay pounds sterling, he further said: "That being so, I cannot entertain a doubt that the intention was that the obligor should, in order to secure the payment of those sums, become bound in a penalty consisting also of pounds sterling; and if that were the intention, then the bond ought to be read as if the word 'pounds' were inserted in it." In the same case, Bayley, J., said: "It has been decided that in the furtherance of the obvious intent of the parties, even a blank may be supplied by a deed. In Waugh v. Russell (1 Marshall, 214), the word 'hundred' was omitted in the latter part of the condition of a bond. It was held that it might be supplied, and that in pleading the bond. might be described according to its legal effect, as if the Statement of Facts. word hundred' had been inserted in it. I think in this case, that it is obvious that the obligor meant to bind himself in a penal sum consisting of pounds sterling, and therefore, that the omission of the word 'pounds' may be supplied." In a case in Louisiana a bond was perfect in every respect, except that in the penal part, after the words "fourteen hundred and ten," the word "dollars" was omitted; but the bond having been given pursuant to a judge's order directing one in the sum of fourteen hundred dollars, the court thought the omission a mere clerical error, which might be supplied even in an action on the bond, when there existed as high or higher evidence by which to act. (6 Mort. La. R., N. S. 494.) We think, in view of the fact that there is a recital in the undertaking that Hibler had been admitted to bail in the sum of five hundred dollars, and that the whole undertaking is perfect, except that one word is omitted in a blank, there can be no doubt as to the intention of the parties. This being so, the weight of authority justifies the supplying of the omission. Judgment affirmed. J. MOSER, RESPONDENT, v. N. JENKINS, APPELLANT. REPLEVIN. The action for the recovery of personal property, under the Code, is substantially the former action of replevin, and is governed by the same principles and rules, especially in relation to demand and refusal. IDEM AFFIDAVIT NO PART OF THE PLEADINGS.-The affidavit, under which an immediate delivery is sought, is no part of the pleadings, and the facts therein set forth form no part of the issues in the case. PLEADINGS CONJUNCTIVE DENIALS.-No issues can be raised by conjunctive and literal denials. APPEAL-WHAT AMENDMENTS NOT ALLOWED ON.-Upon an appeal from an inferior court to the Circuit Court, no amendment, which substantially changes the issues raised and tried in the inferior court, can be allowed. APPEAL from Marion County. This is an action by Moser to recover certain personal property owned by him, alleged to have been wrongfully Opinion of the Court-McArthur, J. taken and detained by Jenkins. It was originally brought in a Justice's Court, and after judgment was duly appealed to the Circuit Court. In the Circuit Court, Moser had a verdict in his favor, and recovered judgment thereon, from which Jenkins appeals. The other facts are stated in the opinion of the Court. P. C. Sullivan and E. L. Eastham, for Appellant. Mallory & Shaw, for Respondent. By the Court, MCARTHUR, J.: Section 206 of the New York Code, and 2 509 of the California Code, are almost identical with 2 130 of the Code of Oregon. They differ only as to the time within which an immediate delivery of the property, the subject of the action, can be claimed by the plaintiff. Such being the fact, ?130 must be viewed in the light of the New York and California cases. In the absence of any precedents of this Court, we cannot but regard all the well-considered cases in New York and California as authorities binding upon us. The view taken by the New York courts is, that the action given by the Code for the delivery of personal property is substantially the former action of replevin; changed, indeed, in its name, and modified in its form, but in its principles and objects identical. (McCurdy v. Brown, 1 Duer, 105.) There were no substantial changes made as to the requisites of maintaining the action. (Scofield v. Whitelegge, 49 N. Y. 261.) An examination of the California reports discloses the fact that it is almost universally regarded as the old action of replevin, and the word itself, as descriptive of the character of the action, is used in nearly all the cases. The action lies both in the cepit and detinet. Where goods or chattels are wrongfully taken the action is in the cepit, and where they are wrongfully detained it is in the detinet. The complaint in this action is for both wrongful taking and wrongful detention. There is no allegation of demand and refusal; hence it is contended by the appellant's counsel that the complaint does not state facts sufficient to consti Opinion of the Court-McArthur, J. tute a cause of action. This position is not well taken; for in an action for wrongful taking and wrongful detention demand is not necessary. When, however, the plaintiff relies upon wrongful detention, demand must be pleaded as well as proved. When he relies upon wrongful taking, or upon wrongful taking and wrongful detention, demand is not necessary. Nor is this complaint defective upon the other point alluded to in the argument. It alleges lawful possession in the plaintiff, at a certain time and place, of certain personal property, which is sufficiently described. It is not necessary, in an action for the recovery of the possession of personal property, that the complaint should correspond with the affidavit, which the Code requires to be made and indorsed in the manner prescribed, before delivery can be had. In such affidavit certain prescribed facts must be set out and sworn to, but they form no part of the issues in the case. (Kerrigan v. Ray, 10 How. Pr. R. 213.) Passing to the consideration of the answer, we find that the denials are in the following form: 1. "That on the 10th day of April, 1875, the plaintiff was lawfully possessed of one dark bay mare about six years old, and one bay horse about seven years old, and one set of twohorse harness; 2. "That on and ever since the 10th day of April, 1875, the defendant wrongfully took and detained said goods and property from this plaintiff; 3. "That he still unjustly detains the same to the damage of this plaintiff in the sum of fifty dollars, or any other sum." It will be observed that the first and second denials are in the conjunctive form, and are also what is known as literal denials. They are insufficient to raise any issues, and are virtual admissions of the truth of the allegations they were intended to deny. (17 Cal. 569; 22 Id. 163; Scovill v. Barney, 4 Or. 288.) The third denial, besides being a literal denial, except as to the amount of damages, is insufficient to raise an issue in relation to the wrongful taking, which is the gist of this action. Entertaining the views just expressed in relation to the VOL. V.-29 Points decided. 5 450 19 141 23* 884 5 450 26 564 38* 708 5 450 31 285 5 450 35 582 3 450 a36 148 5 450 37 77 5 450 644 474 pleadings, we do not deem it necessary to examine into any of the errors complained of, except one which will be presently alluded to; for when a party by his bad pleadings has admitted away his case, any error committed by the court must be regarded as innoxious. The exception alluded to, and the one which we have deemed it necessary to express our views upon, is, that after the trial had begun in the court below, the appellant moved that he be allowed to file an amended answer. The court denied the motion, and this is charged as error. By the proffered amended answer, the defendant sought to set up a state of facts in justification. The Court properly denied the motion. It was its duty to try the cause on the pleadings substantially as they came from the Justice's Court; and the amended answer tendered other issues entirely. It is only when the proposed amendment does not substantially change the issues tried in the Justice's Court, that the Circuit Court should permit it. Judgment affirmed. JAMES TIPPIN, RESPONDENT, v. THOMAS M. WARD, EVIDENCE-DECLARATIONS AND ADMISSIONS, HOW MAY BE SHOWN.-In an ac- A case should be submitted to the jury, unless there is entire lack of EVIDENCE, WHAT WILL CONSTITUTE A REFUSAL TO PERFORM.-In an action upon a contract to support and provide for an infirm person, want of courtesy, personal indignities, and the general demeanor of defendant towards the plaintiff, may be sufficient to show a breach, on defendant's part, although he may not have refused to support plaintiff in direct terms. MEASURE OF DAMAGES.-When there has been a total breach of contract, the plaintiff may, if he demands it, recover full and final damages for the future, as well as the past, although the period for full performance has not elapsed. |