.... .... been granted to signed, creditor of said deceased, presents deceased"], the under claim against the estate of said deceased, with the necessary vouchers, to said administrator [or, "executor"] for approval, as follows, to wit: whose foregoing claim is herewith presented to the administrator [or, "executor"] of said deceased, being duly sworn, says the amount thereof, to wit: the sum of ...... dollars, is justly due to said claimant; that no payments have been made thereon, and that there are no offsets to the same to the knowledge of said claimant. Subscribed and sworn to before me, this day of .... ..... A.D. 18.. SECTION 1. Replevin lies for all 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. 22 Cal. 139. SEC. 2. Under our system, probably an action can be maintained upon any title, legal or equitable, or upon an instrument sealed or unsealed, which entitles plaintiff to the possession of the property in dispute as against the defendant. 13 Cal. 33. SEC. 3. Against the cutting of timber the owner of real property is entitled to the preventive remedy of injunction. Whilst the timber is growing, it is part of the realty, and its destruction constitutes the kind of waste the commission of which a court of equity will, upon petition, restrain. When once cut the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously, and he may pursue it in whosoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he cannot find the property to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value as upon an implied contract of sale. 16 Cal. 578. SEC. 4. A party should not be denied the right of action. for his property, and the right of recovery against any one, whether a sheriff or not, unless it be held by legal process against himself. 3 Cal. 470. SEC. 5. Where A had a large quantity of flour stored in the warehouse of B, and sold a portion of it to C, and gave an order for the flour sold on B, who accepted the same and gave C in exchange a receipt for the same, and transferred it on his warehouse books to the account of C, but did not separate any specific portion from the flour of A, as the property of B, and the whole was subsequently seized in an action against A: It was held, that the sheriff 'was not liable to C, in the absence of segregation of the flour, but that B was estopped by his receipt from denying his liability. 6 Cal. 68. This action being for the recovery of specific property, it was necessary to show, as against the sheriff, that the portion claimed by the plaintiffs had been severed and designated from the bulk out of which it was sold; otherwise, there was no mode of identification. This resulted from the nature and character of the action. But in favor of B the same reasoning could not be invoked. He was a warehouseman and gave his receipt for a specific quantity of flour. He was estopped from denying his liability. 6 Cal. 71. SEC. 6. Action, in the nature of replevin, to recover eighteen hundred dollars taken by the defendant as sheriff, under process, as the property of one McCormick. MeCormick was a witness, and testified that this money was taken from a safe in his possession belonging to Wells, Fargo & Co., who had four hundred dollars in the safe, the balance being the money of plaintiff. McCormick was present at the levy of the officer, and was agent for Wells, Fargo & Co., and when the plaintiff made the claim for the money taken, interposed no objection. The supreme court say: The ground taken by defendant on appeal is that there was no segregation of this money sued for from the mass in the safe, so as to enable the plaintiff to bring and maintain his suit. But the position, however plausible, is not sustained. As McCormick was the agent of Wells, Fargo & Co., to keep their money, he had authority to retain it in their safe, the proper place of its deposit, and when he recognized the claim of the plaintiff, before the eighteen hundred dollars was taken away, to the latter sum, it was as if he had elected for Wells, Fargo & Co. to hold the four hundred dollars as theirs. was, in other words, as if a division and allotment had been made of the money in the safe according to the respective rights of the owners. At least, there was evidence enough to go to the jury as to this matter of severance, and the court did not err in refusing a nonsuit. 14 Cal. 412, 413. When Previous Demand Necessary. It SEC. 7. If the original possession of property is acquired by a tort, no demand previous to the institution of a suit for its recovery is necessary. 23 Cal. 359; 12 Cal. 483. SEC. 8. In an action by A against a sheriff for seizing. the property of A in the hands of B, as the servant of A, on an execution against B, no demand is necessary before bringing suit, the plaintiff being deemed to be in possession of the property at the time of the levy through his servantthe sheriff had notice that the property was owned by the plaintiff, the original taking being therefore tortious. The psssession of a servant is the possession of a master for the purpose of maintaining trespass (1 Chitty's Pl. 194); and the same rule applies in an action of replevin in the cepit. 3 Hill, 348; 1 Cal. 161. SEC. 9. It is only when the original possession is lawful, and the action relies upon the unlawful detention, that a demand is required. 12 Cal. 483. SEC. 10. A sale effected by fraud works no change of property. The wares must be considered as remaining in the vendors as the original owners. This being so, the civil remedies of the party defrauded are clear, viz: trover or replevin in the detinet or trespass, or replevin in the cepit, at his election. Trover will lie without demand and refusal, because the original taking is tortious. The general and absolute Ownership still remains in the vendor or bailor; and not only the original interference with the property on the part of the vendee or bailee but any subsequent acts of ownership on his part may be considered as an unlawful or tortious taking. The general owner holds the constructive possession of personal property; and this is sufficient to maintain trespass, though the actual possession be in Where the owner consented to the taking it would another. undoubtedly be a sufficient answer. But consent, in law, is more than a mere formal act of the mind. It is an act unclouded by fraud, duress or, sometimes, even mistakes. 12 Cal. 462, 463. SEC. 11. Demand, its purpose in Trover and Replevin.-The only purpose of proving a demand in the actions of trover and replevin is to show the defendants wrongful. Whitman G. & S. M. Co. vs. Tuttle, 4 Nev. 494. SEC. 12. When Demand for Personal Property Unnecessary. When the owner of personal property does not part with it voluntarily, but it is tortiously taken from his possession, or any act is done which makes the possession of the person having it wrongful, no demand is necessary to be shown. to entitle the owner to a recovery of it. 4 Nev. 494. SEC. 13. Demand not Indispensably Necessary.-In an action of replevin it is not indispensably necessary to show a demand upon the defendant to return the property before suit brought. A demand serves no purpose, except to establish a conversion or a wrongful detention. When that can be established without showing a demand, a demand is unnecessary. Justice Johnson dissenting. Perkins vs. Barnes, 3 Nev. 557. SEC. 14. When, therefore, the defendant in his answer admits the detention and claims title in himself, the title alone is put in issue and no demand need be shown. Justice Johnson dissenting. 3 Nev. 557. The Pleadings. SEC. 15. An allegation in the complaint of the place where the property was taken, in an action to recover possession of personal property, is surplusage. 25 Cal. 545. SEC. 16. In such action to enable the defendant to obtain the value of the property on judgment of dismissal against the plaintiff for failure to appear, the answer must contain some allegation or prayer relative to the change of possession from defendant to plaintiff. The judgment of return is in the nature of a cross judgment, and there must be some appropriate averments in the pleadings to put in issue the facts upon which the relief is given. 13 Cal. 430, 431. SEC. 17. Admission of the Value of Goods.-In an action for the conversion of chattels alleged by plaintiff to be of a certain value, defendant denied that they were of such value, or of any greater value than a certain less sum named: Held, that this was an admission that they were worth the less sum named. Carlyon vs. Lannan, 4 Nev. 156. The Judgment. SEC. 18. In an action of replevin by W. it appeared on |