useless to plaintiff for farming purposes or any other purpose, and during all the time aforesaid hindered and prevented said plaintiff from any benefit, use or emjoyment thereof, and greatly damaged and injured the land of plaintiff adjoining thereto, to the damage of said plaintiff of $10,000, and therefore said plaintiff asks judgment in his favor against the said defendants for the said sum of $10,000, besides costs of this action.

J. S. COLT,

Plaintiff's Attorney.

(No. 69.)

Trespass for taking and carrying away personal property.

SUPREME COURT-COLUMBIA COUNTY.

The New-York and Harlem Railroad Com

pany
agt.

John S. Decker.

The complaint of the New-York and Harlem Railroad Company, plaintiffs in this action, against John S. Decker, defendant, respectfully shows to this court:

That the plaintiffs are a company, duly incorporated under the laws of the State of New-York as the NewYork and Harlem Railroad Company, for the transportation of freight and passengers from the city of New-York to Chatham, New-York, on the line of their railroad, and to and from the intermediate stations thereon.

That on or about the 20th day of February, 1855, the said plaintiff's had in their possession in their depot known

as Bain's Station, on the line of their railroad, in the town of Copake, New-York, about ten barrels of rye flour, of the value of $80, which said plaintiffs had received for transportation on their railroad to the said city of NewYork.1

And plaintiffs further show, that they also had in their possession, at the same time and place, about six bags filled with clover seed, in all about fourteen bushels and seven pounds of clover seed, of the value of $200, which said plaintiff's had before that day transported on their said railroad to said depot and station, and which was then and there in said plaintiffs' possession for delivery, and being so possessed of said barrels of rye flour, and about six bags filled with clover seed, the said defendant, on or about the 20th day of February aforesaid, forcibly entered into the said plaintiffs' depot at Copake, aforesaid, and then and there wrongfully took and carried away the said barrels of rye flour and about fourteen bushels and seven pounds of clover seed and about six bags from the said plaintiffs' possession.

Wherefore plaintiffs demand that defendant may be adjudged to pay the plaintiffs' damage, to the sum of $280, with interest from the 20th day of February, 1855, and the costs of this action.

R. G. DORR,
Plaintiffs' Attorney.

'See note to No. 71, post, p. 492, as to allegation of facts showing plaintiff's title to sue, when he has only a special property in the goods; see, also, Pleadings, 289, 290.

(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

day of

he was lawfully in pos

session of a covered carriage and set of harness, his own property,' of the value of $150,2 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.

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.

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 day of 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.1

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.)

1

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.1

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.)

2 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