the plaintiff made his promissory note, of which the following is a copy [insert copy], which note was made and delivered by the plaintiff to A. B., without consideration, and for his accommodation, and with the special purpose and agreement between the plaintiff and said A. B., that [state intended appropriation of the note as the fact was].

II. That said note was thereafter offered by said A. B. to the bank of.... which refused to discount the same, and returned it to said A. B., whereupon the plaintiff became entitle to the possession thereof [or state facts as they occurred]. III. That thereafter, but before the maturity of the note, the defendant C. D., without the knowledge or consent of the plaintiff or of A. B., unlawfully took the said note from the possession of A. B. and delivered it to the defendant E. F.; and that the defendants thereupon converted and disposed of it to their own use, whereby the plaintiff was compelled to pay it, to his damage dollars.

[DEMAND OF JUDGMENT.135

66

§ 2130. Value of note. If the plaintiff does not know the exact amount of the note converted, he may state it as of great value, to-wit, the value of," etc., designating a sum.136 The amount of the note is prima facie the measure of damages.137

The plaintiff complains, and alleges:

I. That before, and until the time hereinafter mentioned, one A. B. owned and was lawfully possessed of [designate the goods], or was entitled to the immediate possession of [describe the goods].

A. B. assigned to the plaintiff his claim against the defendant for damages for said conversion.

[DEMAND OF Judgment.]

135 As to the manner in which bank notes may be described in the complaint, see Dows v. Bignall, Hill & D. Supp. 407.

136 Bissel v. Drake, 19 Johns. 66.

137 Ingalls v. Lord, 1 Cow. 240; Decker v. Mathews, 5 Sandf. 439.

§ 2132. Assignment by married women. An assignment by married women of certain specific goods and chattels, "as well as all claims and demands for any portion of them," carries the right of action for the previous wrongful taking of any of the assigned goods.138

§ 2133. Assignment for benefit of creditors. A general assignment of all property for the benefit of creditors is held to pass a right of action for the conversion of promissory notes.139

§ 2134. Consideration of assignment. It is not necessary to allege the consideration of the assignment.140 A general averment of ownership is sufficient in an action by an assignee before the conversion. It is not necessary to set forth his title in the complaint. Under such an averment, a bill of sale from the former owner may be given in evidence.141

§ 2135. Conversion before assignment. Where the complaint charges a conversion of personal property after its assignment to the plaintiff, he can not recover for a conversion before its assignment. The case is not a variance, but the causes of action are distinct.142

§ 2136. Complaint by assignees. Where the complaint averred that defendant wrongfully took and detained from one Johnson certain county warrants owned by the latter; that subsequently Johnson assigned to plaintiff his right in the warrants, and the moneys which might be made by the same; and that, after this assignment, plaintiff demanded the warrants from defendant, who refused to deliver them, and it was held that this complaint stated a sufficient cause of action; that, as assignee of Johnson, plaintiff was entitled to recover the warrants or their value, with damages for their detention accruing after their assignment.143

138 Sherman v. Elder, 24 N. Y. 381.

139 Whittaker v. Merrill, 30 Barb. 389; and see Westcott v. Keeler, 4 Bosw. 564.

140 Vogel v. Badcock, 1 Abb. Pr. 176.

141 Heine v. Anderson, 2 Duer, 318.

142 Whittaker v. Merrill, 30 Barb. 389.

143 Lazard v. Wheeler, 22 Cal. 139. In an action for the conversion of a city warrant for street improvements, in which the complaint described the same as "Stevens street warrant A. 896," and the proof showed that its number should be A. 893, the vari

§ 2137. Demand by assignee. Such a claim will pass by a general assignment in trust for the payment of creditors. a new demand by the assignee is unnecessary.144

And

§ 2138. Power of owner after conversion. After the conversion of a chattel or an injury to real or personal property, the owner may either sell the chattel itself or assign his right of action for the conversion or injury.1

145

§ 2139. Right of action assignable. A right of action of this nature is assignable, and the assignee may sue in his own name.146

one A. B. wrongfully took said goods and chattels from the possession of the plaintiff, and unjustly detained the same.

III. That thereafter the same came into the possession of the defendant, who refused to deliver them to the plaintiff, although, before this action, to-wit, on the

........

day of

18.., the plaintiff duly demanded of the defendant possession of the same.

IV. That the defendant still unlawfully withholds and detains said goods and chattels from the possession of the plaintiff to his damage .. dollars.

[DEMAND OF JUDGMENT.]

ance is immaterial where the amounts, date of issue, rate of interest and payee of the two warrants are the same. Roe v. Cutter, 4 Wash. St. 611.⚫

144 McKee v. Judd, 12 N. Y. 622; 64 Am. Dec. 515.

145 Hall v. Robinson, 2 N. Y. 293; Cass v. New Haven R. R. Co., 1 E. D. Smith, 522; Robinson v. Weeks, 1 Code Rep. 311; McGinn v. Worden, 3 E. D. Smith, 355; Wilson v. Cook, id. 252; Howell v. Kroose, 4 id. 357; S. C., 2 Abb. Pr. 167; North v. Turner, 9 Serg. & R. 244; Hoyt v. Thompson, 1 Seld. 347; McKee v. Judd, 2 Kern. 622; see Hicks v. Cleveland, 39 Barb. 573; Waldron v. Willard, 17 N. Y. 466.

146 Gradwohl v. Harris, 29 Cal. 150; Cal. Code C. P., § 367; see Stott v. Franey, 20 Oreg. 410; 23 Am. St. Rep. 132; Norton v. Whitehead, 84 Cal. 263; 18 Am. St. Rep. 172.

8 2141. Action against assignee. Where the defendant is assignee for the benefit of creditors from wrongdoers, it is necessary to allege that defendant has refused to deliver up the property upon demand.147 But if an actual wrongful conversion of the property is proved, proof of a demand is unnecessary.1

148

The plaintiff complains, and alleges:

I. That before and until the time hereinafter mentioned, one A. B. was lawfully possessed of [or was entitled to the immediate possession of - describe goods], the property of the said A. B., of the value of dollars.

....

.. day of

.....

II. That on the 18.., the same came into the possession of the defendant, who from that day until the commencement of this action has detained the

same.

III. That before the commencement of this action, to-wit, on the ........ day of ... 18.., the said A. B. [or the plaintiff] demanded the same from the defendant, but he refused to deliver them.

........

IV. That thereafter and before this action, said A. B. died intestate, and on the ... day of ... 18.., letters of administration upon the estate of said A. B., deceased, were duly issued and granted to the plaintiff by the probate court of the county of ..... of this state, appointing the plaintiff administrator of all the goods, chattels, and credits which were of said deceased, and that the plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office, and is now such administrator.

[DEMAND OF JUDGMENT.]

2143. When action lies. The administrator may maintain an action for wrongful conversion of the personal estate of the deceased, before the issuance of the letters.149 Such an action.

147 Fuller v. Lewis, 3 Abb. Pr. 383; see, also, Gurney v. Kenney, 2 E. D. Smith, 132.

148 Davison v. Donadi, 2 E. D. Smith, 121; Pringle v. Phillips, 5 Sandf. 157.

149 Jahns v. Nolting, 29 Cal. 507.

may be maintained without the aid of section 116 of the Probate Act;150 and such section does not give a new right of action, but merely increases the damages.151

§ 2144. Essential averments. A complaint in replevin, by an executor, should show the death of the testator, his leaving a will, the appointment therein of the plaintiff as executor, the probate of the will, the issuance of letters testamentary to the plaintiff, and his qualification and entry upon the discharge of his duties as executor.152 When the complaint in such an action alleges that the defendant embezzled, alienated, and converted to his own use the personal estate of the deceased, and prays for double damages, the plaintiff is entitled to recover double damages if the proof sustains the allegation.158

§ 2145. Demand of property. In suit by an administrator for conversion of the property of the estate under section 116 of the statute to regulate the settlement of estates,154 the proof as to the right or title or possession of plaintiff, and the taking or interference by defendant being conflicting, it is error to instruct the jury that a mere demand on the defendant, and the refusal by him to surrender the property, will charge him with a conversion.155

§ 2146. Ownership. A complaint in replevin, alleging that F. was seised and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same without authority and cut down timber growing thereon, to the amount of about three hundred cords; that the defendant afterwards also entered upon the premises without authority, and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage

150 Cal. Code C. P., § 1458.

151 Id.; see Levy v. Superior Ct., 105 Cal. 600, construing this section of the Code of Civil Procedure.

152 Halleck v. Mixer, 16 Cal. 575.

153 Jahns v. Nolting, 29 Cal. 507.

154 Cal. Code C. P., § 1458.

155 Beckman v. McKay, 14 Cal. 250.