to allege or prove the precise day of the conversion; on the contrary, the action may be sustained upon proof that the conversion was committed on a day other than that alleged in the petition. Peacock v. Feaster, 51 Fla., 269; Hixon v. Pixley, 15 Nev., 475; Aldrich v. Higgins, 77 Conn., 370; Dietus v. Fuss, 8 Md., 48. In the case at bar the first instruction authorized the jury to find against the appellant if it converted the machine to its own use on or before February 19, 1910, with interest from the day of the conversion; and in response to that instruction the verdict gave interest from February 19, 1910, until paid. In this verdict the jury found as a fact that the corporation converted the machine to its own use on the day it began business; and this finding is fully supported by the evidence. There is no error here.

2. Was a demand on "The Goldberger Iron Company" for a return of the machine necessary before the plaintiff could maintain an action for its conversion? It is claimed by appellant that such a demand was necessary upon the theory that trover will not lie against one who comes lawfully into possession of property, until after demand for its return and a refusal thereof; and as appellee neither alleged a demand in its petition nor proved it, the judgment should have gone peremptorily for the appellant. The rule is that where an actual conversion is alleged, as here, an averment of demand and refusal is not required. Or, as stated by Chitty:

"In the case of a conversion by wrongfully taking it is not necessary to prove a demand and refusal; and the intent of the party is immaterial; and if defendant acted under the supposition that he was justified in what he did, or as the servant of, and for the benefit of, another person, he will be equally liable to this action." 1 Chitty's Pleading, 153.

The reason for the rule is that while a demand and refusal may afford satisfactory evidence of a conversion, they do not constitute the only evidence by which a conversion may be proved, since any wrongful exercise or dominion over chattels to the exclusion of the rights of the owner, or a withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion. Newcomb-Buchanan Co. v. Baskett, 14 Bush, 658. This general rule has been fully recognized in Ohio where these transactions were had, in B. O. R. R. Co. v. O'Donnell, 49 Ohio St., 489; 21 L. R. A., 117; 34 Am. St. Rep., 759, where the Supreme Court of Ohio said:

"It is contended that, where the property of one person has lawfully come into the possession of another, a refusal by the latter to deliver it to the owner on his demand is necessary to constitute a conversion of it, and therefore the petition, in an action for its conversion, must contain an allegation of such demand and refusal. The allegation is not essential. A refusal to deliver the property on demand of the owner may show such an assumption of ownership or control' of it as to afford satisfactory evidence of a conversion, but it is only evidence. The ultimate fact to be pleaded is the conversion; and in actions of that nature a petition with proper allegations of plaintiff's ownership of the property and of its value, and which avers that the defendant converted it to his own use, states a cause of action." To the same effect see Doggett v. Gray, 110 Cal., 169; Buntin v. Pritchett, 85 Ind., 247; Kendall v. Duluth, 64 Minn., 295; Norman v. Horn, 36 Mo. App., 419; Schmidt v. Garfield Nat. Bank, 64 Hun., 298, affirmed in 138 N. Y., 631; Johnson v. Ashland Lumber Co., 45 Wis., 119. The appellee's petition fully complies with these requirements of good pleading.

We attach no importance to the contention of appellant that trover did not lie for conversion of the machine because it was attached to the freehold, since it was a trade-fixture whose removal was as easy and practicable as its installation. Moreover, as appellant contends it bought the land upon which it was situated but did not buy the machine, it is somewhat difficult to understand how it reconciles that claim with its present contention that the machine is a part of the realty.

3. With respect to appellant's claim that appellee could not maintain trover for the conversion of the machine because appellee was not entitled to immediate possession thereof at the time of the conversion, it is sufficient to say that the proof thoroughly establishes the fact that the title and ownership of the machine remained in the steel company until it was paid for. This fact was expressly set up and relied upon by Goldberger in the Cincinnati suit upon the note. Under this contract and the Ohio Law, appellee had the undoubted right to reclaim the machine; and that being true, it necessarily follows that it had the right to sue for its conversion. Sanders v. Keber, 28 Ohio St., 630; Albright v. Meredith, 58 Ohio St., 194. It is a significant fact that Goldberger did not testify on the trial of this case.

4. Was the suit against Goldberger in the Cincinnati

court upon the note, such an election of his remedy as would estop him from subsequently prosecuting this suit against the corporation for conversion of the machine? The general rule is that the prosecution of one remedial right, to judgment or decree, whether the judgment is for or against the plaintiff, is a decisive act which constitutes a conclusive election, and bars the subsequent prosecution of inconsistent remedial rights. 15 Cyc., 295. In suport of this conclusion, the author cites Albright v. Meredith, 58 Ohio St., 194. But the Cincinnati suit proceeded no further than the answer, and was subsequently dismissed without prejudice. Under the rule above announced, which is also the rule in Ohio, the institution and dismissal without prejudice of the Cincinnati suit was not a conclusive election against the maintenance of this action, since there was no judgment or decree in the Cincinnati suit. In Tuttle v. Burgett's Admr., 53 Ohio St., 698; 30 L. R. A., 314, it was held that a grantee who had agreed to support his grantor during life, in consideration of a conveyance of property, was not discharged from his obligation by bringing a suit to set aside the conveyance and recover back the property, where the suit had been abandoned and dismissed without trial, and the grantee had not been disturbed in the possession or enjoyment of the property. In view of the Ohio authorities upon the point, we conclude that a further prosecution of this inquiry is not necessary for the decision of this case. But if there were any doubt upon the subject, the correctness of the rule above stated would be emphasized by a consideration of the fact that this action for a conversion of the machine and the suit on the note were not between the same parties. The Cincinnati suit was upon the note and against Goldberger individually, while this action is in trover and against the Joseph Goldberger Iron Company only. There is nothing whatever inconsistent in the two actions and it is apparent that the appellant had nothing whatever to do with the first action and has not been prejudiced thereby.

Some question is made in appellant's brief as to the ruling of the court in excluding testimony offered by appellant, which showed certain facts attending the installation and operation of the machine. Appellant introduced quite a good deal of testimony tending to show that the machine did not fulfill the requirements of the original contract made with Joseph Goldberger. The court permitted appellant to introduce this testimony

tending to show the inefficiency of the machine upon the question of its value; and of this appellant cannot complain.

The instructions given are proper and fully cover the law of the case. The instructions asked The instructions asked by appellant were based upon its contention as to the effect of the Cincinnati suit as a conclusive election against appellee's right to maintain this action and were properly refused for the reasons above given. Judgment affirmed.

1.

2.

3.

Gotee v. Graves.

(Decided March 19, 1913.)

Appeal from Marion Circuit Court.

Judgment-Action to Enforce Satisfaction-Limitation-Plea Not Necessary. A plea of the statute of limitations is not necessary in an action to enforce satisfaction of a judgment on a return of no property found, but to entitle plaintiff to recover he must allege and prove that the execution on which his action is based was issued before the judgment was barred by the statute of limitations.

Execution-Issuance of-Proof.-In the absence of record evidence, the issuance of an execution can only be shown by clear and convincing evidence.

Execution Issuance of-Evidence-Sufficiency.-In an action involving the issuance of an execution, evidence examined and held insufficient to show that the execution issued.

BEN SPALDING for appellant.

H. W. RIVES for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER-Reversing.

Plaintiff, R. A. Gotee, brought this action against the defendant, Charles Graves, to enforce the satisfaction of two judgments against the defendant, one in favor of the plaintiff for $15.38 and $3.05 costs, rendered in the Lebanon police court, and one rendered in the Marion quarterly court in favor of W. E. Russell against the defendant in the sum of $48.30, with interest from the 2nd day of September, 1894, until paid. Plaintiff asked for an

attachment against the property of the defendant, and sought to subject a house and lot purchased by the defendant to the payment of the judgments. On final hearing the chancellor rendered judgment in favor of defendant, and plaintiff appeals.

It appears from the petition that the judgment in favor of plaintiff against the defendant was rendered in the police court of Lebanon on September 11, 1894. It is alleged in the petition that an execution was issued on said judgment on the........day of.... 1900, and while in full force and effect was placed in the hands of the sheriff of Marion County, and that on the.....day of 1900, the sheriff returned said execution, "No property found." It is further alleged in the petition that on August 21, 1911, another execution issued from the police court of Lebanon to the sheriff of Marion County, and that this execution was returned, "No property found." Thereafter a certified copy of the judgment and execution was filed by plaintiff in the office of the clerk of the Marion Circuit Court. Another execution was then issued on the judgment and returned, "No property found." The petition states that copies of said execution, with returns thereon, together with copies of the judgment and taxation of costs, are filed with the petition and made a part thereof.

and costs.

In another paragraph plaintiff charges that in the Marion quarterly court, in the action of W. E. Russell v. Charles Graves, judgment was rendered against Charles Graves in the sum of $. An execution was issued thereon, and while in full force and effect was placed in the hands of the sheriff of Marion County, Kentucky, which execution was returned by the sheriff, "No property found." Thereafter a certified copy of the judgment and execution was filed in the circuit court. On September 2, 1911, an execution issued from the office of the Marion Circuit Clerk, and while in full force and effect was placed in the hands of the sheriff of Marion County, who, on the 5th day of September, 1911, returned said execution, "No property found." The petition then alleges: "Plaintiff says he by transfer is the owner of said judgment, and is entitled to recover the amount of said debt, interest and costs from the defendant."

The petition then sets out the property purchased by the defendant, and asks that it be subjected to plaintiff's demands.