session of the property," is not traversed by an answer which denies that the "plaintiff was the owner, and entitled to the possession of the property." 14 If the defendant came lawfully into possession of the property, demand and refusal must be averred.15 If special damages are claimed, they should be specially alleged ; 16 but this rule does not apply where the statute clearly provides for "damages for the detention." 17 The defendant is not entitled to damages unless he sets them up in his answer. 18 An averment of value of the goods and damages for their detention being material allegations, a failure to deny them is to admit them to be true.19 Under an answer by the defendant alleging that he is the owner of the property, and that he does not unlawfully detain it, he may prove that a mortgage under which the plaintiff claims title and possession was a forgery.20 So, under a general denial in the answer, it is not error in the court to allow the defendant to prove his right to the possession by virtue of a lien to defeat a recovery by the plaintiff.21 And an answer setting forth that the title of the plaintiff is as administrator of a mortgagee, and that such mortgage was made with intent to defraud creditors, and setting forth facts constituting fraud, and alleging that the defendant had purchased the goods at a sale on an execution had by a constable, is good on demurrer.22 To support an action of claim and delivery, the property must be a personal chattel at the time of the taking; 23 and the property should be particularly described.24 If the property claimed be so mixed with other property that a delivery of the specific article cannot be made, and the plaintiff fails to ask judgment for its value in case it cannot be delivered, the action of claim and delivery cannot be sustained.25

1 See Pico v. Pico, 56 Cal. 453; Pope v. Jackson, 65 Me. 162; Oleson v. Merrill, 20 Wis. 462; Wilson v. Fuller, 9 Kan. 191; Latimer v. Motter, 26 Ohio St. 480; Stockwell v. Phelps, 34 N. Y. 363; Paul v. Luttrell, 1 Colo. 317; Richey v. Du Pre, 20 S. C. 6; Council v. Averett, 90 N. C. 168. 2 Busick ". Bumm, 3 Iowa, 63; Smith v. Montgomery, 5 Iowa, 371; Auld v. Kimberlin, 7 Kan. 601; Pirani v. Barden, 5 Ark. 81.

3 Brown v. Holmes, 13 Kan. 491; Moore v. Kepner, 7 Neb. 291; Krug v. Herod, 69 Ind. 78; Williams v. West, 2 Ohio St. 82.

4 Draper v. Ellis, 12 Iowa, 316; Hurd v. Simonton, 10 Minn. 423 ; Childs v. Hart, 7 Barb. 370; Leroy v. McConnell, 8 Kan. 273.

5 Scofield v. Whitelegge, 10 Abb. Pr. N. S. 104; aff'd, 12 Abb. Pr. N. S. 320; 49 N. Y. 259; Tronson v. Union Lumbering Co. 38 Wis. 202. 6 Wilson v. Fuller, 9 Kan. 177; Yandle v. Crane, 13 Kan. 347.

7 Hoisington v. Armstrong, 22 Kan. 110. And see N. Y. Code Civ. Proc. 1720. Compare Chapin v. Merchants' Nat. Bank, 31 Hun, 52); Davenport Glucose Manuf. Co. v. Taussig, 31 Hun, 563; Baker v. Cordwell, 6 Colo. 199. That ownership is implied from an allegation of sale and delivery: See Morrison v. Lewis, 17 Jones & S. 173.

8 Wilson v. Fuller, 9 Kan. 177; Bailey v. Boyne, 20 Kan, 657; Moore v. Kepner, 7 Neb. 291; McKillip v. Burhans, 12 N. Y. Week. Dig. 185. And see Ford v. Ford, 3 Wis. 399; Jansen v. Effey, 10 Iowa, 231; Walpole v. Smith, 4 Blackf. 304; Bond v. Mitchell, 3 Barb. 304; Williams v. Mathews, 30 Minn. 131; Carman v. Ross, 64 Cal. 249.

9 Pico v. Pico. 56 Cal. 453,

10 Scofield v. Whitelegge, 10 Abb. Pr. N. S. 104; aff'd, 12 Abb. Pr. N. S. 320; 49 N. Y. 259. A complaint which avers that the plainti:f was and is in the possession of the property" does not state a cause of action: Carman v. Ross, 64 Cal. 249.

11 Barclay v. Quicksilver Min. Co. 6 Lans. 25; Heine v. Anderson, 2 Duer, 318. Compare Dambmann v. White, 43 Cal. 439; Simmons v. Lyons, 55 N. Y. 671; Stickney v. Smith, 5 Minn, 486; Malcolm v. O'Reilly, 14 Jones & S. 222; 89 N. Y. 156; Vaudenburgh v. Van Valkenburgh, 8 Barb. 217; Robinson v. Fitch, 26 Ohio St. 653; Morrison v. Lewis, 17 Jones & S. 178.

12 Nudd v. Thompson, 34 Cal. 39.

13 Banfield v. Haeger, 13 Jones & S. 428; 7 Abb. N. C. 318.

14 Richardson v. Smith, 29 Cal. 529. Compare Carman v. Ross, 64 Cal. 249.

15 Scofield v. Whitelegge, 10 Abb. Pr. N. S. 104; aff'd, 12 Abb. Pr. N. S. 320; 49 N. Y. 259; Rawley v. Brown, 18 Hun. 456; Campbell v. Jones, 38 Cal. 507; Shoemaker v. Simpson, 16 Kan. 43: Hurd. Simonton, 10 Minn. 423; Treat v. Hathorn, 3 Hun, 646; Ryerson . Kauffield, 13 Hun, 389. Compare Brown v. Holmes, 13 Kan. 482; Oleson v. Merrill, 20 Wis. 462; Símser v. Cowan, 56 Barb. 395; Stone v. Bird, 16 Kan. 488; Knapp v. Schneider, 10 Daly, 218.

16 Stevenson v. Smith, 28 Cal. 102. And see Park v. McDaniels, 37 Vt. 595.

17 Zitske v. Goldberg, 38 Wis, 216.

18 Whitcomb v. Hoffman, 14 Hun, 335.

19 Tucker v. Parks, 7 Colo. 62; Snell ". Crowe, 3 Utah, 26; Tully v. Harloe, 35 Cal. 306. But see Bailey v. Ellis, 21 Ark. 489; Railroad Co. v. Packet Co. 38 Iowa, 377.

20 Gandy v. Pool, 14 Neb. 98.

21 Lindsay v. Wyatt, 1 Idaho, 738.

22 McFadden v. Fritz, 90 Ind. 590.

23 Hull v. Hull, 1 Idaho, 361.

24 Smith v. Stanford, 62 Ind. 392; Jones v. Minogue, 29 Ark. 637. And see James v. Fowler, 90 Ind. 563; Paup v. Sylvester, 22 Iowa, 371. 25 Hull v. Hull, 1 Idaho, 361.

2133. Common carrier.-A complaint which alleges the delivery of goods by the owner to another, and an acceptance by such other, to be carried from one place to another without reward, the loss of such goods by the bailee, and that the loss was occasioned by the gross negligence of the bailee, stating the value of the goods and the damage to the bailor, states a good cause of action. In tort against a common carrier, it is not necessary to allege that a compensation was paid or agreed to be paid for carrying the goods. But the complaint should allege that the defendant was a common carrier, in order that he may be held responsible in that character. A complaint alleging that the defendants were common carriers of passengers by omnibus or stage, and that they undertook to carry the plaintiff for hire, was held to be sufficient, without alleging that they received compensation from other passengers.* So an averment that the defendant, a common carrier, accepted the plaintiff as a passenger, conveys an implied agreement that the plaintiff will pay the fare and that the carrier will carry safely, and no averment to that effect is necessary. In an action against a common carrier of passengers, to recover damages for a refusal to carry the plaintiff, it is not necessary to allege a tender of the fare; it is sufficient to allege that the plaintiff was ready and willing to pay the defendant such sum of money as it was legally entitled to charge. It is a legal presumption that upon the delivery of goods by the consignor to a common carrier, the title thereto vests in the consignee; and in an action by

8

the consignor against the common carrier, for damages for the non-delivery of the goods to the consignee at the place stipulated in the contract, the complaint will be bad on demurrer if it does not allege that the plaintiff was the owner of such goods, or that such goods were not elsewhere delivered to and accepted by the consignee than the place named in the contract.9 So a complaint which does not state the date of the draft which was lost by a common carrier, the amount for which it was drawn, the time when it was payable, or to whom payable, is insufficient.10 So a complaint in an action by a passenger against a railroad company, for carrying him past a station, must aver that the train should have stopped at such station, or that by a special contract the company had agreed to carry him to that station, and let him off there." If a carrier claims exemption from his common-law liability, under a bill of lading not signed by the owner or consignor of the goods, he must aver and prove that such bill was assented to by the shipper.12 An averment that the goods, for the non-delivery of which the defendant is sued, were lost by unforseen, inevitable accident, without averring why the accident was unforseen and inevitable, is not good.13 If goods are destroyed by reason of a failure on the part of the carrier to perform his contract of transportation, the shipper is excused freight, and the failure to perform is a defense going to the whole cause of action for freight, and may be proved under a general denial.1 Where the complaint in an action against a common carrier to recover damages for the non-delivery of goods merely alleges a breach of his common-law duty, and the evidence shows that the goods were received for carriage under a special written contract which was not declared upon, the variance is fatal, and the plaintiff cannot recover.15 So if the com

plaint seeks to make the defendant liable as a warehouseman for the loss of goods, there cannot be a recovery against him in some other capacity, as in that of a common carrier.16

1 McCauley v. Davidson, 10 Minn. 418. It is essential to aver a delivery of the goods to the carrier: Jordon v. Hazard, 10 Ala. 221. And that he accepted or undertook to carry the goods: Sommerville v. Merrill, 1 Port. 107.

2 Hall. Cheney, 36 N. H. 26. And see Ferguson ". Cappeau, 6 Har. & J. 394; Wiggin v. Railroad Co. 120 Mass. 201. Compare Bristol v. Railroad Co. 9 Barb. 153.

3 Bristol v. Railroad Co. 9 Barb. 158.

4 Roberts v. Johnson, 5 Jones & S. 157; 53 N. Y. 613.

5 Lemon v. Chanslor, 68 Mo. 340. And see Nolton v. Railroad Co. 10 How. Pr. 97; 15 N. Y. H.

6 Tarbell v. Railroad Co. 34 Cal. 616.

7 Tarbell v. Railroad Co. 34 Cal. 616.

8 Railroad Co. v. Whitesel, 11 Ind. 55; Pennsylvania Co. v. Holderman, 63 Ind. 18.

9 Pennsylvania Co. v. Holderman, 69 Ind. 18.

10 Zeigler v. Wells, 23 Cal. 179.

11 Railroad Co. v. Hatton, 60 Ind. 12. See People v. Haberstro, 16 Alb. L. J. 151.

12 Gaines v. Union Transportation Co. 23 Ohio St. 418.

13 Bentley v. Bustard, 16 Mon. B. 643.

14 Dunham v. Bower, 77 N. Y. 76.

15 Hall v. Pennsylvania Co. 90 Ind. 459. And see Railroad Co. v. Remmy, 13 Ind. 518; Railroad Co. v. Bennett, 89 Ind. 457; Railroad. Co. v. Worland, 50 Ind. 339; Gaines v. Union Transportation Co. 28 Ohio St. 418. In cases where there is a special contract with the carrier, by which his common-law liability is restricted, and the action against him is in tort for the breach of a duty or obligation imposed by law, the complaint or petition need not notice the special contract, although it may be under seal: Clark v. Railroad Co. 64 Mo. 440. See Oxley v. Railroad Co. 65 Mo. 629.

16 Porter v. Railroad Co. 20 Iowa, 73. See Golden v. Romer, 20 Hun, 438. It is held, under the Wyoming Code, that a carrier sued for the loss of baggage may, in connection with a general denial, plead that he had tendered the baggage in good condition to the defendant and kept the tender good: Lake Shore etc. R. R. Co. v. Warren, 6 West C. Rep. 416; 6 Pacif. L. Rep. 724.

2134. Conspiracy. - A simple conspiracy, unless it results in actual damage, is not the subject of a civil action, and is necessary to be averred and proved only where a verdict is demanded against two or more defendants. The allegation of conspiracy is of no im