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(No. 70.)

For converting plaintiff's goods, where a demand and refusal

are necessary to be alleged and proved.

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action:

That on the day of he was lawfully in possession of a covered carriage and set of harness, his own property,' of the value of $150, which property on that day he left in possession of the defendant, to be returned to him, the said plaintiff, whenever he should demand the same.

That on the day of - the plaintiff demanded of the defendant a return of the said property, which the defendant refused, and the defendant has converted the said property to his own use.

Wherefore the plaintiff demands judgment, &c.

1

This is what was denominated the old action of trover. The declaration alleged the possession by the plaintiff of the property and its value ; that it was casually lost by the plaintiff, and afterwards came into the defendant's possession by finding, and that the defendant, though requested, had not returned the property, but has converted it to his own use. The losing and finding, &c., are, of course, mere fictions, and are not proper to be alleged in a pleading under our present system. (See Pleadings, 15.) As to what is a sufficient allegation of possession and ownership in the plaintiff, see Pleadings, 275, 276.

2 The allegation of value is a mere matter of form, and is unnecessary in such a complaint under the Code. (See Pleadings, 276; also, Connoss v. Meir, 2 Smith’s Com. Pl. R., 314.)

3 As to when a demand of the goods and refusal should be alleged, see Pleadings, 276; see, also, Fuller and others v. Lewis, 13 How., 212; Hunter v. Hudson River Iron and Machine Co., 20 Barb., 493.

An allegation that “the property, after being in the possession of the plaintiff, came into the possession of the defendant, who, although requested so to do, has not delivered the same to the plaintiff, but ( No. 71.)

For converting goods of which plaintiff was in possession

as bailee, where a demand is not necessary to be alleged or proved.

day of

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action: That the plaintiff, on the

was lawfully in possession of a gold watch of the value of $100, which had before that time been delivered to him by the owner thereof, one A. B., for the purpose of having the same put in repair.

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wrongfully detains the said goods from him,” is sufficient (if true) to establish a conversion. A wrongful detention against the demand of the true owner is a conversion, as much as a wrongful taking. (Sheldon, administrator, &c., v. Hoy, 11 How., 11.)

When a person sells goods for another as a pedlar, &c., and refuses to account, but converts the money, &c., to his own use, the person employing him may elect whether he will sue on the contract for refusing to account, or for the defendant's breach of duty, arising out of his employment for hire, and the conversion of the money and goods by the defendant to his own use. (Ridder and others v. Whitlock, 12 How., 208.) But he cannot blend the two causes of action together. A claim in contract and a claim in tort cannot be joined. Though arising "out of the same transaction," they are not connected with the same “subject of action ;” (lbid. ; Sweet v. Ingerson, 12 How.,

331.)

A special property in the goods, as bailee, &c., is sufficient to sustain an action for the conversion of them. In such cases it is proper to state concisely, the facts establishing the plaintiff's special property and showing his right to sue. (See Pleadings, 275, 277.) But it is, perhaps, enough to allege that the plaintiff was in possession of the property, without stating anything further. Such an allegation is equivalent to the allegation that he was " lawfully possessed;" and the term “possessed” imports that it is held by legal title. (Sheldon, administrator, &c., v. Hoy, 11 How., 11.)

That the plaintiff, on the same day, delivered the same to the defendant, a watchmaker by trade, for that purpose ;! but the said defendant has sold the said watch, and has converted the same and the avails thereof to his own use, without the permission or consent of this plaintiff or of the said A. B.

Wherefore the plaintiff demands judgment against the defendant, &c.

( 12.) To Recover Possession OF PERSONAL OR REAL PROPERTY.'

(No. 72.)

To recover possession of specific personal property, with

damages for detention ; no demand and refusal alleged.

SUPREME COURT - COUNTY OF COLUMBIA.

John R. Brown

agt.
Lemuel B. Austin.

The complaint of the abovenamed plaintiff respectfully shows :

1 Where the taking itself has been wrongful, or where the goods have been lost or destroyed, no averment of a demand and refusal need be made, inasmuch as none need be proved on the trial. ( Pleadings, 276.)

? A complaint to recover possession of goods purchased of the plaintiff, the delivery having been procured through fraud to the defendants, is sufficient, it is said, if it is substantially in the form of the old declaration of replevin in the detinet, and charges that the defendants have become possessed of and wrongfully detain the goods and chattels of the plaintiff'; and in such a case it is unnecessary to

That the plaintiff was the owner and in possession of the following goods and chattels, that is to say, [describing them), of the value of $275. And being so in possession, the defendant, on the — day of — at, &c., without the plaintiff's consent, and wrongfully, took said goods from the possession of the plaintiff, and wrongfully detains the same.

Wherefore the plaintiff demands that the defendant may be adjudged to deliver to the plaintiff the said goods and chattels, and to pay the plaintiff damages, for the detention thereof, to the sum of $50, besides costs.?

C. L. BEALE,

Plaintiff's Attorney.

aver a demand of the goods, or an allegation of any of the facts going to establish the fraud. (Hunter v. The Hudson River Iron and Machine Co., 20 Barb., 493.)

But if the defendant came in possession of the property by the delivery of the wrong-doer,” though only as his assignee, in trust for creditors, and merely detains it, a demand and refusal are issuable facts, necessary to sustain the action, and must be alleged in the complaint. So held in Fuller and others v. Lewis (13 How., 219), per CLERKE, J.

1 The plaintiff's title may generally be set forth the same as in actions for converting personal property. (See Nos. 70 and 71 ; see, also, as to what the complaint, in such cases, must contain, Pleadings, 277. 280.)

% An injunction may be granted, in a proper case, in aid of an action to recover the possession of personal property, in which case the complaint should state the facts showing the plaintiff's right to the injunction, and it should be demanded in the prayer for relief. (See a complaint so drawn, No. 24, Part II., ante, p. 132, and cases cited in note.)

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(No. 73.)

To recover possession of real estate, with damages for with

holding the same.

SUPREME COURT-RENSSELAER COUNTY.

John W. Witbeck

agt.
John K. Defreest.

The plaintiff complains of the defendant, and states the following facts constituting his cause of action :

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" It is held, at General Term in the sixth district, in Walter v. Lockwood (4 Abbott, 307), that the complaint in an action to recover possession of real estate need not be drawn in the form prescribed by the Revised Statutes in an action of ejectment; but that both complaint and answer, in such actions, should conform to the rules of pleading laid down in the Code; and their sufficiency must be tested by the Code, and not by the Revised Statutes.

This is, to some extent, sustained by the General Term of the second district, in Ensign v. Sherman (14 How., 439, reversing tho same case at Special Term, 13 How., 35), holding that a complaint for possession of real estate valid, which alleges that the plaintiff "had lawful title as owner in fee simple," to the premises described, and that the defendant “is in possession of said real estate, and unlawfully withholds the possession of the same from the plaintiff," without alleging that the plaintiff was ever in possession, and that the defendant subsequently entered.

Neither of these cases, however, hold that the simple provisions of the statute, relative to an action of ejectment, may not be followed, if the pleader prefer, where the allegations of the pleading correspond substantially to the fact to be proved. The precedent, given in the text, is so drawn. In the reported case above referred to (Walter d. Lockwood, 4 Abbott, 307) will be found one drawn without reference to the statute.

It may be added that, in Warner v. Nelligar (12 How., 402), a Special Term decision, it is held that the provisions of the Statutes,

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