| Ala. | Dec 15, 1879
Appellant brought an action of detinue against defendant, for a mule: to which non detinet, was pleaded, and also, specially j that defendant had not possession of the mule when the suit was brought. To which plaintiff replied, that “defendant was in possession of the property sued for in this suit, a short time before the bringing of the same, and that the said property was claimed and demanded of him by this plaintiff, as her property, and that after said notice and demand he wrongfully parted with the possession before the beginning of the suit.” A demurrer to this replication wás sustained, and this is assigned as error. The ease was submitted as on briefs, but there is none with the record.
The action is brought to recover particular chattels in specie. Its gist is the wrongful detainer, and not the original taking. — 1 Chit. PI. 122-3. It is therefore maintainable, ordinarily, only against a person who has possession of the thing sued for. If this be' parted with before judgment or,
There might be a case, possibly, in which, if it be alleged and shown that the person sued has transferred the chattel claimed, with intent to evade an- action against him for it, and to keep the property away from the owner, detinue perhaps would lie. But the replication in this record does not make such a case. Consistently with its allegations, defendant might have remained in possession of the mule months after the demand of plaintiff was made, and after-wards have disposed of the animal without any thought of plaintiff’s claim of the same.
Whether this was done wrongfully or not, would depend on the facts of the case; and none are disclosed that support the legal conclusion alleged in the replication.
Let the judgment of the Circuit Court be affirmed.