I. G. SIMPER v. ANDREW BENTLEY

(First Circuit — Hamilton Co., O., Circuit Court Jan. Term, 1898.) Before Cox, Smith and Swing, JJ. I. G. SIMPER v. ANDREW BENTLEY. Replevin — Wrongful possession must appear— The gist of replevin is unlawful possession of the property. Where therefore, defendant has disposed of the property and is fno longer in its possession,[the proper remedy is not replevin, but an action for unlawful conversion. Error to the Court of Common Pleas of Hamilton county. [MAJORITY — Smith, J.] Smith, J. We are”of the opinion that the second defense interposeu by the defendant to the petition of replevin filed against bim by the plaintiff, charging him with the illegal detention of a cow on which plaintiff averred he had a chattel mortgage, and to the immediate possession of which he was entitled, set up a good defense to the action, and that the court of common pleas did not err in overruling the demurrer filed thereto. The answer substantially averred that at the time the action was commenced and when summons issued, the cow in question was not actually or constructively in defendant’s possession,which fact plaintiff knew at the time he commenced his action. That if he ever had possession of the property, he had parted with the same in good faith and without any knowledge of plaintiff’s claim thereto, long before the action was commenced, all of which plaintiff knew when he commenced his action. G. B. Werner, for Plaintiff in Error. Gorman & Thompson, for Defendant in Error. The gist of the action of replevin, is the unlawful detention by the defendant of property to the possession of which the plaintiff is entitled. On the averments of this answer paintiff was not detaining the property from the defendant at all,for he had in good faith disposed of the same long before the suit was commenced, as the plaintiff well knew. His remedy therefore, if he had any against the plaintiff, was for an unlawful conversion of his property, and not by replevin to recover the possession of- it. And in our opinion, the provision of our statute, sec. 5827, that in replevin cases, where the property is not taken by the officer, or is returned to the defendant on plaintiff’s failing to give bond, the action shall proceed as one .for damages, does not apply to a case of this kind; but to one where the replevin is properly brought,and the property can not be found, or is returned to the defendant as above stated. The overruling of the demurrer being the only error assigned, the judgment will be affirmed.