MANUEL OTERO, Respondent, v. BULLARD, FIGG & Co., Appellants

MANUEL OTERO, Respondent, v. BULLARD, FIGG & Co., Appellants. Objections to a declaration, when they arise from matters of form, are not the sub ject of a demurrer. In the action of detinue, the manner of laying the possession of the property has always been held to be inducement. It is usual to aver a bailment, or finding. This court cannot say whether the description of the property might have been more accurate. Appeal from the Tenth Judicial District. • This suit was brought for the specific recovery of certain mules, horses, and packing apparatus, and came up on demurrer to the complaint, for causes stated in the arguments of counsel. Saunders and Edwards, for appellants. Defendants demurred to the complaint on several grounds: 1st. That the title did not specify the name of the county, nor that of the court, other than as the Tenth Judicial District, and cited stats, of 1851, p. 56, sect. 39. 2d. That it did not show where either of the parties resides. Acts of 1851, p. 53, sec. 20. 3d. It does not describe the property with sufficient certainty; the action is analogous to detinue and replevin, and the property should be described' so that the sheriff might apportion it, and place it in the hands of the plaintiff. 1 Chit, on Plead. 113; 3 Bac. Abr. 135, 6; 8 lb. 553; 3 Bibb. 221. 4th. No description of the place where the property was taken or detained. 1 Chit. Plead. 148; 8 Bac. Abr. 554. There is no averment of tort in the taking: it is therefore to be held, that defendant’s possession was lawful; and therefore there could be no cause of action till after demand, and no demand is averred. 3 Johns. 361; 1 Bac. Abr. 607; 8 lb. 525. The complaint does not aver that plaintiff is entitled to possession ; it avers that the property was wrongfully detained, but this is a mere conclusion of law. 1 Chit. Plead. 111, 12, 146; 2 Bibb. 510: 3 Bac. Abr. 135; 8 lb. 525; 15 Mass. 310, 552. Walker, for respondent. There is no ground for the demurrer. Prac. Act, sec. 40. 1. The clause in the 39th sect, requiring the name of the county in the complaint is directory, not mandatory. 2. The residence of the parties is not required to be stated under the Practice Act of 1851. 3. The description is sufficient; the brand of the mules is described; and “ apparatus for packing” is sufficiently definite. 4. The complaint alleges an unlawful detention. 5. The property is alleged to belong to the plaintiff. [MAJORITY — Heydenfeldt, Justice,] Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred. The objections to the declaration arise from matters of form, which are not the subject of demurrer. It is true, that in an action of detinue, it is usual to aver a bailment or finding; but the manner in which the defendant became possessed of the property, has always been held to be mere matter of inducement. As to the description of the property, it is impossible for us to say whether it could have been more accurate or particular. There was no error in overruling the demurrer, and the order ’ is affirmed.