tain. 188 So of a description as "two thousand pounds of oats, more or less, now situated in a certain granary, on the premises now occupied by defendants."189 But a description simply as "five hundred and ninety sacks of wheat," was held insufficient. 190 It is not necessary, however, to describe specifically the character of the property, as that it is exempt from sale on execution, any more than it is in an action of trespass or trover.191 An exhibit containing a description of the property in order to become a part of the complaint must be annexed and attached thereto, and it is not sufficient to file the same as a separate paper, although referred to in the complaint and alleged to be a part thereof.192

§ 2156. Damages. In actions for taking and detaining personal property, no circumstances of aggravation being shown, the measure of damage is the fixed value of the property, with interest up to the time of the rendition of the verdict.193 So in an action against a sheriff for wrongful seizure and sale of property.194 Damages are to be ascertained at the place where it is detained when the action is commenced,195 But where the value of the goods is fluctuating, the plaintiff may recover the highest market value at the time of the conversion, or at any time afterwards,196 the market value to be ascertained at the place of the conversion.197 Interest is allowed as a matter of right from the time when value is estimated.198 The defendants are not entitled to claim compensation for money or ser188 Guille v. Wong Took, 13 Oreg. 577.

189 Hook v. Fenner, 18 Col. 283; 36 Am. St. Rep. 277; see, also, Bilby v. Townsend, 29 Neb. 220; Wood v. Darnell, 1 Ind. App. 215; Sawyer v. Middlesborough Town Co. (Ky.), 17 S. W. Rep. 444. 190 Pierce v. Langdon, 2 Idaho, 878.

191 Krause v. Herbert, 16 Oreg. 429; Dennis v. Snell, 50 Barb. 98. 192 Riley v. Pearson, 21 Oreg. 15.

193 Dorsey v. Manlove, 14 Cal. 553; Hamer v. Hathaway, 33 id. 117; Phillips v. Sutherland, 1 West Coast Rep. 350. See, also, as to the measure of damages in replevin, Hauselman v. Kegel, 60 Mich. 540; Lewis v. Mason, 94 Mo. 551; Thompson v. Scheid, 39 Minn. 102; 12 Am. St. Rep. 619; Coffin v. Taylor, 16 Oreg. 375. 194 Pelberg v. Gorham, 32 Cal. 349; 11 id. 22.

195 Hisler v. Carr, 34 Cal. 641.

196 Douglass v. Kraft, 9 Cal. 563; Dorsey v. Manlove, 14 id. 555; Hamer v. Hathaway, 33 id. 117.

197 Id.

198 Id.; but see Civil Code, § 3336, as amended, 1878.

vices laid out or expended upon plaintiff's property, in the absence of a request on his part. No request will be presumed when the property of one person is taken under legal process against another.199 The damage when the property has been delivered is the legal interest on the value thereof during the detention.200 In an action to recover possession of a mare, and damages for her detention, damages resulting from the mare's losing flesh, and the breeding season during such detention, should be specially alleged.201

2157. Demand. In this form of action a demand must be proved. 202 But it is only when the original possession is lawful, and the action relies upon the unlawful detention that a demand is required.203 Where the taking is by an officer upon proper legal authority, a demand is necessary in order to make him liable in damages.204

§ 2158. Execution-creditor joined. If the levy was made by the direction of the execution-creditor, he also may be joined.205

199 Hisler v. Carr, 34 Cal. 641; see Lumber Co. v. Lesh, 119 Ind. 98; 12 Am. St. Rep. 367.

200 Nickerson v. Chatterton, 7 Cal. 568; Douglass v. Kraft, 9 id. 562.

Allegation

201 Stevenson v. Smith, 28 Cal. 102; 87 Am. Dec. 107. of special damages, see Ross v. Malone, 97 Ala. 529; Bradley v. Bovin, 53 Kan. 628. The rightful possession being found in favor of the plaintiff, nominal damages may be awarded, without averment of special damage, for the wrongful detention, and without proof of actual injury. Hammond v. Solliday, 8 Col. 610. The value of the use of the property during the time of detention is recoverable as damages in replevin, and such damages may be estimated down to the day of trial. Coffin v. Taylor, 16 Oreg. 375. 202 Powers v. Bassford, 19 How. Pr. 309; Fuller v. Lewis, 3 Abb. Pr. 384; see Gurney v. Kenney, 2 E. D. Smith, 132; Storm v. Livingston, 6 Johns. 44. But proof of demand is unnecessary when the pleadings admit it. Francisco v. Benepe, 6 Mont. 243. 203 Paige v. O'Neal, 12 Cal. 483; Bacon v. Robson, 53 id. 399; Stone v. O'Brien, 7 Col. 458; Harris v. McCasland, 29 ill. App. 430; Surles v. Sweeney, 11 Oreg. 21.

204 Daumiel v. Gorham, 6 Cal. 43; Killey v. Scannell, 12 id. 73. But no demand is necessary when the seizure was wrongful. Moorhouse v. Donaca, 14 Oreg. 430; Chandler v. Calcord, 1 Okl. 260; Smith v. Jensen, 13 Col. 213; Hopkins v. Bishop, 91 Mich. 328; 30 Am. St. Rep. 480.

205 Allen v. Crary, 10 Wend. 349; 25 Am. Dec. 556; Acker v. Campbell, 23 Wend. 372; Marsh v. Backes, 16 Barb. 483.

§ 2159. Fixtures, when personal property. By the wrongful severance from the premises, the fixtures become personal property, for the recovery of which an action of replevin will lie by the purchaser after he obtains a sheriff's deed.206

§ 2160. Liabilities of third persons. Where a person is in . possession of goods belonging to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention.207 A third person, who acquires possession of the goods from a wrongdoer, is liable when notice has been given.208 And against such, no demand is necessary,209

§ 2161. Property taken for tax. In New York, under a statute providing that replevin shall not lie for goods taken for a tax pursuant to statute, it was held that property taken from the owner for a tax assessed on him under a statute of the United States, can not be replevied by him.210 Yet the rightful possessor of goods unlawfully seized under a warrant against another for nonpayment of taxes, may prosecute an action to recover possession of such goods, and take proceedings of claim and delivery of such goods.211 In such cases the court can not inquire into the regularity of the proceedings upon which the warrant issued 212

§ 2162. Relief. If there are several defendants, the court may adjudge a return of the property in favor of such of the defendants as appear to be entitled to a return, and refuse it as to such of them as are not.213 The judgment must be in the

206 Sands v. Pfeiffer, 10 Cal. 258.

207 Nichols v. Michael, 23 N. Y. 264; 80 Am. Dec. 259; Dunham v.

Troy Union R. R. Co., 3 Keyes, 543.

208 Olmstead v. Hotailing, 1 Hill, 317, and cases there cited; and see Ely v. Ehle, 3 N. Y. 506.

209 Pringle v. Phillips, 5 Sandf. 157.

210 O'Reilly v. Good, 42 Barb. 521; S. C., 18 Abb. Pr. 106.

211 Stockwell v. Vietch, 18 Abb. Pr. 412; and see Daniels v.

Nelson, 41 Vt. 161; 98 Am. Dec. 577.

212 People v. Albany, 7 Wend. 485.

213 Woodburn v. Chamberlin, 17 Barb. 446.

Vol. II-5

alternative, and not in any case absolutely, for the value of the property.214

§ 2163. Right of possession. Replevin lies for goods and chattels unlawfully taken or detained, and may be brought whenever one person claims personal property in the possession of another, and this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right to the possession.215 A bill of sale of a given number of cattle, part of a herd running on the seller's ranch, giving the purchaser the right to select the number sold, and take the same immediately, gives to the purchaser the right, after demand and refusal, to recover possession of the entire herd in an action at law, and then select the number purchased, and return the residue to the seller.216 The plaintiff, by virtue of his prior actual possession of the land, will be entitled to recover, unless the defendants prove they entered in good faith, with the intention to pre-empt the land, on which hay was cut, and had actual possession of it at the time.217 The ownership requisite to maintain an action for the recovery of personal property need not be absolute. A right to the possession and dominion over it for the time is all that is essential.218 And a complaint in such action, which states the particular facts entitling the plaintiff to the immediate and exclusive possession of the property claimed, sufficiently pleads his title thereto, although it contains no general allegation that he is the owner and entitled to the possession of the property.219 But in order to sustain the action the plaintiff must have the right to the immediate and exclusive possession of the property at the time the action is commenced. And a complaint averring that on a day, two days prior to the commencement of the action, the plaintiff was the owner and en

214 Fitzhugh v. Wiman, 9 N. Y. 559; Dwight v. Enos, id. 470; Cooker v. Aguirre, 86 Cal. 479; Phipps v. Taylor, 15 Oreg. 484. Otherwise in Arkansas, see Swantz v. Pillow, 50 Ark. 300; 7 Am. St. Rep. 98.

215 Lazard v. Wheeler, 22 Cal. 139; Pangburn v. Partridge, 7 Johns. 140; 5 Am. Dec. 250, and cases there cited; Cresson v. Stout, 17 Johns. 116; 8 Am. Dec. 373.

216 McLaughlin v. Piatti, 27 Cal. 464.

217 Page v. Fowler, 37 Cal. 112.

218 Lewis v. Birdsey, 19 Oreg. 164; Stevens v. Chase, 61 N. Y. 340. 219 Visher v. Smith, 91 Cal. 260.

titled to the immediate possession of the property, and that defendants refused to deliver the property upon demand made on the day of the commencement of the action, and unlawfully withhold possession, etc., does not state a cause of action.220 And a complaint which only avers ownership and right of possession in the plaintiff at a time more than four years before the commencement of the suit is clearly bad.221 In replevin, the plaintiff is not required to plead specially the source of his title, or the particular facts which entitle him to the possession of the property. He may allege generally that he is the owner and entitled to the immediate possession, and, under it, prove any right of property, general or special, that entitles him to possession, as, for example, a chattel mortgage and a breach of its conditions which, by the terms of the instrument, entitles the mortgagee to possession.222 In an action of claim and delivery, when the complaint alleges ownership and right of possession in the plaintiff, and wrongful detention by the defendant, a general verdict for the plaintiff finds all these issues for the plaintiff. Such verdict determines that he is owner and entitled to possession.223 And where, in such action, the evidence shows that the ownership of the property was the only issue, an allegation in the complaint that the plaintiff was the owner of and entitled to the property at the time of the commencement of the suit, is sufficient after verdict.224

2163a. Nonpayment. In replevin by a chattel mortgagee against an attaching creditor of the mortgagor, an allegation in the complaint of the nonpayment of the mortgage note, the same not being due, is unnecessary.2

225

§ 2163b. Allegation of value. In an action for the claim and delivery of a stated number of hogs, of which the aggregate value is alleged in the complaint, a finding that each hog was 220 Fredericks v. Tracy, 98 Cal. 658.

221 Affierbach v. McGovern, 79 Cal. 268.

223 Miller v. Adamson, 45 Minn. 99; and see Everett v. Buchanan, 2 Dak. 249. But in some jurisdictions a plaintiff in replevin must set forth in his complaint or petition the facts which constitute his special interest or ownership in the property. Ream v. McElhone, 50 Kan. 409; Kennett v. Peters, 54 Kan. 119; 45 Am. St. Rep. 274; Musser v. King, 40 Neb. 892; 42 Am. St. Rep. 700. 223 Gaines v. White, 1 S. Dak. 434. 224 Pierce v. Langdon, 2 Idaho, 878. 225 Stevenson v. Lord, 15 Col. 131.