delivering to the said C. D., personally a true copy thereof, attached to a copy of the complaint (or petition] therein, at 4. That on said date a writ of attachment was duly issued in due form in the said last-named action, after the summons was issued therein, and placed in the hands of the defendant, as sheriff aforesaid; that on said date the said sheriff delivered a true copy of said writ of attachment to in whose possession the property described in said complaint (or petition) then was, together with a written notice signed by said sheriff, endorsed on said copy of said writ of attachment, and directed to said , notifying him that , all moneys, goods, credits, effects, debts due or owing, or any other personal property in his possession or under his control belonging to said C. D., were attached by virtue of said writ of attachment, and not to pay over or transfer the same to any one but him, the said sheriff. , 5. That thereafter, to wit, on the day of , 19 judgment was duly made, rendered, and entered in said last-named action, in said court, against said C. D., and in favor of said E. F., for the sum of $ 6. That on the , day of 19 an execution was duly issued in due form in said court, under and by virtue of said judgment, which execution was on said last-mentioned date placed in the hands of the defendant, as sheriff, for service. 7. That said sheriff executed the same by delivering to said , a true copyу of said execution, and a notice, in writing, notifying said all moneys, goods, credits, effects, debts due or owing, or any property in his possession or under his control, belonging to the said C. D., were levied upon by virtue of said writ of execution, and not to pay over or transfer the same to any one but him, the said sheriff, and by delivering to the said C. D. personally, on the that , , , day of 19 at a true copy of said writ of execution and notice, together with a description of the property levied upon. 8. That said sheriff, by virtue of said writ of execution, duly levied upon, on the day of 19 all the right, title, and interest of said C. D. in and to the property described in the complaint, the same then being in the possession of said being the sole property of the said C. D., by taking all of said property into his possession, and by delivering to said , and , on , the day of , 19 , a true copy of said writ of execution, together with a description of all of said property, and a written notice that said property, and all the right, title, and interest of said C. D. therein, was levied upon, and by delivering to said C. D. , , personally on the 9. That said sheriff, on the day of tised all of said property in accordance with law, by posting notices of sale, particularly describing said property, in places in , public advertising said property to be sold at public auction in view thereof, at [place of sale], on , 19 and that on said day all of said described property was by said sheriff, at the hour of and at the place aforesaid, exposed for sale at public auction, and was sold in separate lots or parcels to the highest and best bidders for cash, the whole thereof being sold for the sum of $ said sum, less the sum of $ day of , , , sheriff's costs, was on the 19 credited on said execution and judgment. 10. [Denial that plaintiff was the owner or in possession of said goods and chattels, or any thereof.] [Concluding part.] FORM No. 1008-Defenses-(1) that foreign corporation plaintiff had not filed articles or designated resident agent, (2) justification of the taking of outlawed and gambling devices, (3) specific denials of value, etc.-In replevin, by foreign corporation. (In Mills Novelty Co. v. Dunbar, 11 Idaho 671; 83 Pас. 932.) [Title of court and cause.] , [After introductory part and admission of incorporation of plaintiff, the answer avers in substance:] That the plaintiff has not filed a copy of its articles, certified or otherwise, in the office of the secretary of state of the state of Idaho, and has not, in writing or otherwise, designated any person residing within the state as its agent upon whom legal process may be served, and denies that the plaintiff was, on the 22d day of October, 1904, or at any other time, at the city of Boise, or any other place within the state of Idaho, lawfully possessed of said slot-machines, or that the plaintiff was at the commencement of this action, or at any time since, entitled to the possession of said slot-machines; denies that said slot-machines are of the value of $325, or any other sum; denies that said slot-machines, or any part thereof, were on said date, or at any time, the property of the plaintiff; denies that the plaintiff at any time before the commencement of this action demanded the possession of said slot-machines; denies that he still unjustly detains the same, or ever at any time unjustly detained the same, to the damage of the plaintiff in any sum whatever. For a second defense, the defendant alleges: That he is a duly appointed, qualified, and acting justice of the peace in and for Boise Precinct No. 2, Ada County, Idaho; that on the 22d day of October, 1904, information was presented to him as such justice of the peace, by which, as such justice of the peace, he was informed and satisfied that gambling devices, to wit, said nine slot-machines, were then within the said city, and then in operation as such gambling devices in said city; that said information was derived from an affidavit of the prosecuting attorney of said county; that thereupon defendant, acting as such justice of the peace, forthwith issued warrants to "the sheriff or any deputy sheriff or constable in said county," commanding that said slot-machines be brought before him at his office in said city; that thereupon said slot-machines were, under and by virtue of said warrants placed in the hands of A. Anderson, the constable of said county, seized and brought before the defendant, as justice of the peace, to be dealt with according to law and the statute in such cases made and provided, and that such slot-machines were in the custody of the law, and in the possession and under the control of said A. Anderson, as constable, subject to the order of said justice's court, at the time of the commencement of this action, all of which facts were well known to plaintiff and its agents and attorneys at the time of the institution of this action; that said slot-machines are, and each of them is, adapted to, and designed and designated for, the purpose of being used solely in gambling; that they were at the time the same were seized and for many days prior thereto, being used for the sole purpose of gambling and playing games, at which money was bet and won or lost; that said slot-machines were gambling devices, and that the same and all of them are outlawed property, without value or ownership, at the time of the commencement of this action and at all times since said date; that said * * * * machines are not susceptible of any legitimate use, and that the same, and all thereof, are instruments of crime, designed and devised for the purpose of violating the statutes of this state prohibiting gambling, and are incapable of ownership; that such slot-machines were at the time of the commencement of this action, and at the times mentioned in the complaint, in the possession of the said constable. Wherefore [etc.]. Quarles & Pritchard, Attorneys for defendant. For various other forms in claim and delivery or replevin, see the following (ch. XXIII): Affidavit on claim and delivery, form No. 211; Order and demand upon sheriff, endorsed upon affidavit, form No. 212; Certificate of sheriff, endorsed upon affidavit, form No. 213; Undertaking, form No. 214; Justification of sureties on undertaking, form No. 215; Sheriff's certificate of service of undertaking, form No. 216. Forms of complaint in actions of replevin: Wegner v. Second Ward Sav. Bank, 76 Wis. 242, 44 N. W. 1096; Scully v. Porter, 3 Kan. App. 493, 496, 43 Pac. 824, 825. Form of answer in an action to obtain possession of certain personal property, held by the sheriff under attachment: Butts v. Privett, 36 Kan. 711, 14 Pac. 247. Form of answer in an action in replevin to recover the possession of a warranty deed: Richards v. Gaskill, 39 Kan. 428, 18 Pac. 494. Form of affidavit in replevin: Gardner v. King, 37 Kan. 671, 15 Pac. 920, 921. Form of bond in an action upon a redelivery bond in replevin: Kennedy v. Brown, 21 Kan. 171, 175. Form of redelivery bond in an action in replevin: Nye v. Weiss, 7 Kan. App. 627, 53 Рас. 152. Form of notice of appeal in an action in replevin to recover possession of sundry chattels alleged to be wrongfully taken and withheld by the defendant, sheriff, who seized said property as the property of the defendant: Corbell v. Childers, 17 Ore. 528, 21 Pac. 670. For agreed statement of facts in action to recover personal property or its value, see Blankinship v. Oklahoma City etc. Co., 4 Okla. 242, 43 Pac. 1088. For agreed statement of facts in action in replevin by the United States of America to recover from common carrier goods and supplies transported by such common carrier and upon which defendant claimed the right of lien for its services, see Union Pacific R. Co. v. United States, 2 Wyo. 170. For agreed statement of facts in action in replevin, and to determine rights and title to property of an attaching creditor whose remedy is perfected, as against an attaching creditor held to have released his lien by laches in pursuing his remedy, see Speelman v. Chaffee, 5 Colo. 247. § 423. ANNOTATIONS.—Claim and delivery of personal property.-Replevin. 1. Essentials of complaint. 2, 3. Allegation as to ownership. 4, 5. Possession in defendant an essential. 6. Gist of the action of replevin under the statutes. 7-9. When action will lie. 10. Demand in replevin. 11. Demand unnecessary where seizin is unlawful. 12. Defense.-Estoppel to deny taking. 13. Defense as to demurrage tendered. 14. Action upon replevin bond. 1. Essentials of complaint. In a suit to recover personal property, the complaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to the possession at some period prior to that time: Manti City Sav. Bank v. Peterson, 30 Utah 475, 86 Pac. 414, 116 Am. St. Rep. 862, (replevin), citing Fredericks v. Tracy, 98 Cal. 658, 660, 33 Pac. 750; Afflerback v. McGovern, 79 Cal. 268, 269, 21 Pac. 837; Masterson v. Clark (Cal.), 41 Pac. 796; Holly v. Heiskell, 112 Cal. 174, 175, 44 Pac. 466; Kimball Co. v. Redfield, 33 Ore. 292, 54 Pac. 216. 2. Allegation as to ownership. In an action of claim and delivery of personal property, a general allegation of ownership is ordinarily sufficient: Illinois Sewing M. Co. v. Harrison, 43 Colo. 362, 96 Pac. 177; Benesch v. Waggner, 12 Colo. 534, 21 Pac. 706, 13 Am. St. Rep. 254; Baker v. Cordwell, 6 Colo. 199; Hanna v. Barker, 6 Colo. 303, 313. 3. Ownership implies right of possession. A general allegation of a right to the possession of goods and chattels demanded in replevin is sufficiently maintained by evidence of ownership alone, for the reason that the ownership of property usually carries with it the right of possession; this, however, is subject to any special right to possession of the property, as may be shown by the adverse party: Krebs Hop Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45, citing Cassel v. Western Stage Co., 12 Iowa 47, as to exception where special right to possession is shown. 4. Possession in defendant an essential. A plaintiff can not recover in an action in claim and delivery where it appears that the defendant did not have the property in his possession at the time of the commencement of the action: Riciotto v. Clement, 94 Cal. 105, 29 Pac. 414. 5. A plaintiff in replevin must recover, if at all, on the strength of his own claim, and a failure to prove his right to the immediate possession of the property, where the illegal detention is denied, is a failure of proof upon a material point: Bardwell v. Stubbert, 17 Neb. 485, 23 N. W. 444; Krebs Hop Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 46. 6. Gist of the action of replevin under the statutes. An action of replevin at common law could be maintained only when the personal property sought to be recovered was wrongfully taken. The remedy has generally been extended by statute so as to include an unlawful detention, and the gist of the action is now regarded as the wrongful holding by a person of goods, chattels, etc., the right to the immediate possession of which is in another: Krebs Hop. Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45; Nunn v. Bird, 36 Ore. 515, 59 Pac. 808. 7. When action will lie. -The action of replevin lies only against the party who wrongfully detains the property in controversy from the complainant,-a fact which must be alleged by the relator in his complaint and proved on the trial: Barnes v. Plessner, 137 Mo. App. 571, 119 S. W. 457, 458, citing Mo. Rev. Stats. 1899, § 3901, Ann. Stats. 1906, p. 2156; Davis v. Randolph, 3 Mo. App. 454. 8. An action in claim and delivery for the possession of shares of stock in a corporation, as being intangible property, will not lie: Ashton v. Heydenfeldt, 124 Cal. 14, 56 Pac. 624; Bell v. Bank of California, 153 Cal. 234, 238, 94 Pac. 889. 9. An action of replevin can not be maintained against one not in the actual or constructive possession of property, unless he has sold, disposed of, or removed the same with intent of avoiding the writ: Robb v. Dobrinski, 14 Okla. 563, 78 Pac. 101, 1 Am. & Eng. Ann. Cas. 981; Depriest v. McKinstry, 38 Neb. 194, 56 N. W. 806; Riciotto v. Clement, 94 Cal. 105, 29 Pac. 414; Davis v. Van De Mark, 45 Kan. 130, 25 Pac. 589; Gardner v. Brown, 22 Nev. 156, 37 Pac. 240. See cases enumerated in note to Robb v. Dobrinski, supra, 1 Am. & Eng. Ann. Cas. 984. 10. Demand in replevin. -The better rule would appear to be that a demand is not an essential averment in replevin; for, as it has been well said, "if the |