#### Oleson vs. Merrill.

*Pleading*— Complaint *in replevin.*

1. In an action under the code to recover possession of personal property, a complaint which alleges merely that the same is the property of the plaintiff, and that the defendant has become possessed of and wrongfully detains it, is sufficient, without any allegation of demand and refusal.

2 . Under such a complaint, plaintiff may prove either a wrongful taking, a demand and refusal, or facts which render a demand unnecessary where the original taking was lawful.

*463APPEAL from tbe Circuit Court for *Jackson*County.

Action to recover possession of personal property. Tbe complaint alleges *“*tbat tbe defendant bas become possessed of, and wrongfully detains from tbe plaintiff, tbe following personal property, goods and chattels, tbe property of tbe plaintiff,” &c. Tbe defendant demurred to tbe complaint as not stating facts sufficient to constitute a cause of action; tbe demurrer was sustained; and tbe plaintiff appealed.

*Carl 0. Pope,*for appellant,

to tbe point tbat tbe complaint was not bad because it did not contain any allegation tbat plaintiff was entitled to tbe possession of tbe property, distinct from tbe allegation of ownership and wrongful detention, cited *Pattison v. Adams,*7 Hill, 126 ; *Bond v. Mitchell,*3 Barb., 304; *Vandenburg v. Van Valhenbwrg,*8 id., 217; 1 Van Santv. PL, 279. To tbe point tbat no allegation of a demand and refusal was necessary, be cited *Magee v. Scott,*9 Cush., 148 ; Morris on Replevin, 44, 78 ; *Oummings v. Vorce,*3 Hill, 282 ; *lls-ley v. Stubbs,*5 Mass., 280; *Badger v. Phinney,*15 id., 359; *Baker v. Pahs,*16 id., 147 ; Morris on Replevin, 39, 43.

*Montgomery & Wing,*for respondent,

to tbe point tbat a demand and refusal should be alleged, cited *Stratton v. Allen,*7 Minn., 502; *Phdler v. Lewis,*13 How. Pr. R, 219; *Smith v. Welch,*10 Wis., 91; 1 Whittaker’s Pr., 742-3 ; *Ply v. Phh,*3 Corns., 508 ; *Barrett v. Wairren,*3 Hill, 350 ; *Livingston v. Stoes-sel,*3 Bosw., 19 ; *Howell v. Kroose,*4 E. D. Smith, 357 ; *Wilson v. Gook,*3 id., 252; 2 Abb., 167 ; *Monnotv. Lbert,*33 Barb., 24; *Newsam v. Finch,*25 id., 175 ; *Seaman v. Luce,*23 id., 240; 1 Abb. Pr. & PL, 512, note (s), and cases there cited.

Dixon, C. J.

We are of opinion tbat tbe complaint is sufficient. Under tbe allegation tbat tbe defendant *wrongfully detains,*tbe plaintiff may prove a wrongful taking of tbe property, a demand and refusal, or any of those facts which render a demand and refusal unnecessary where tbe original taking was lawful. Proof of any facts showing tbat tbe property was *464wrongfully detained at tbe time of tbe commencement of tbe action will satisfy tbe allegation of tbe complaint, and entitle tbe plaintiff to recover. Property wrongfully taken is wrongfully detained until it is restored to tbe possession of tbe person rightfully entitled to it. In that case, of course, no demand need be made. It was well settled in replevin before tbe code, that for property wrongfully taken an action for tbe wrongful detention would lie; in other words, that replevin in tbe *detinet*might be substituted for replevin in tbe *cepit,*or *cepit et detinet.*Tbe plaintiff was at liberty to waive bis right to proceed as for tbe force, to disregard it in declaring, and to sue for tbe wrongful detention alone, on tbe same principle that trover was made concurrent with trespass, and assumpsit concurrent with both, where there bad been a tortious taking. *Cummings v. Vorce,*3 Hill, 282; *Pierce v. Van*Dyke, 6 Hill, 613. No reason is perceived why tbe same thing may not now be done. Tbe code has changed tbe forms of actions but not their causes ; and a plaintiff having a cause of action for tbe wrongful taking of property, and also for its wrongful detention, may waive tbe former and sue for tbe latter, tbe same as before its enactment. And if tbe original taking was not wrongful, but tbe defendant came lawfully into possession, yet if be detains tbe property when by law tbe plaintiff is entitled to have it returned to him, such detention becomes wrongful. In such case proof of a demand and refusal is but evidence of a wrongful detention, which is tbe material fact to be alleged in tbe complaint. But where tbe defendant came lawfully into possession of tbe property, proof of a demand and refusal is not always necessary. It may be dispensed with when a wrongful assumption of property in, or right of disposing of tbe goods, is shown, and in some other cases. See 1 Cbitty’s PL, 154-5, and cases cited in text and notes. Any act amounting to a conversion in trover, will constitute a wrongful detention in replevin, and as tbe complaint charges a wrongful detention at tbe time of tbe commencement *465of the action, we do not see bow it can be held bad on demurrer, because a demand and refusal are not also averred. For if, in tbe absence of an averment to tbe contrary, we are to presume that tbe original talcing was lawful, still we have seen that proof of a demand and refusal may not be required. Tbe plaintiff may rely upon some other act of tbe defendant amounting to a conversion, and prove it, and what then would become of tbe allegation of demand and refusal ? It would certainly serve no useful purpose. It might mislead tbe defendant perhaps, but would not strengthen or elucidate tbe cause of action already stated. We think, therefore, that tbe learned court of Minnesota was mistaken when it held, in *Stratton v. Allen &*Chase, 7 Minn., 502, that a like complaint was bad for want of an allegation of demand and refusal. Nor can we agree with that court in saying that tbe mere absence of an averment that tbe original taking was unlawful, affords sufficient grounds for presuming, and that we must presume, that such taking was lawful. It seems to us, without any facts being stated in tbe complaint showing or tending to show that tbe defendant came lawfully into possession, that no such presumption can be indulged as against tbe averments of title in tbe plaintiff, and an unlawful detention by tbe defendant, both 6f which are admitted by tbe demurrer. It has already been observed that a wrongful detention may be shown by proof of a wrongful taking. *Fuller v. Lewis,*18 How. Pr. R., 219; *S. C.,*3 Abb. Pr. R., 383, also cited by counsel in support of tbe demurrer, is an instance of a complaint which contained a statement of facts showing that tbe defendant came lawfully and in good faith into tbe possession. Tbe case is very imperfectly reported, but enough appears from tbe opinion to enable us to understand tbe grounds of tbe decision. Tbe action was against an assignee for tbe benefit of creditors, to recover tbe possession of property which came into bis bands by virtue of tbe assignment and by delivery from bis assignor, tbe original wrongdoer. These facts must have been stated in tbe com*466plaint, for otherwise the court could not have been informed of them; and being so stated, tbe conclusion that the complaint was bad for want of an averment of demand and refusal, or some other facts showing a conversion on the part of the assignee, may have been very well justified. *It may he*that the assignee was properly presumed to have come into possession in good faith and lawfully. But the difference between that complaint and this is very obvious. There the presumption arose from facts stated in the complaint. Here are no such facts. We are ashed to presume that the defendant came lawfully into possession because it is not averred that he did so unlawfully.

The complaint in its present form must be regarded as a substitute for the former action of replevin in the detinet, and as such states a good cause of action, which may be sustained by proof of any facts which would have sustained that action.

*By the Court.*— The order sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.