This is an action for the possession of certain personal property, to wit: a coach and eight horses. Woodworth, the plaintiff, a livery stable keeper, let Griffin & Atherton use the property, and they agreed to pay for the use of the same by the following instrument of writing executed by them:

*168 On the twenty-third day of October, 1861, Knowlton, as the Sheriff of Nevada County, attached the coach and horses as the property of Griffin, under and by virtue of a writ of attachment in his hands for service. The plaintiff recovered judgment in the District Court. A motion for a new trial was denied, and the defendant appeals to this Court.

The proceedings in this case were had during the existence of the statute requiring a replication to new matter set up in the answer. In this case the complaint averred that the plaintiff was the owner and entitled to the possession of the property in question ; the answer denies this averment, and avers that at the time of the levy upon the property, it was the properly in the possession of and owned by Griffin. Appellant avers that this is new matter in the answer, and is admitted to be true, not being denied in the replication. An examination of the record discloses the fact that it is directly denied in the replication; but even if it had not been, these averments in the answer are not new matter within the meaning of the statute. It is but another form of denial of plaintiff’s ownership and right of possession set forth in the complaint. (Frisch v. Caler, 21 Cal. 71 .)

Appellant also contends that plaintiff did not show that he was entitled to the possession of the property at the time of the commencement of the action, because he did not prove any demand of Atherton or Griffin for the property; that they held the properly as lessees; that their right of possession as such lessees could not be terminated without a special demand upon them. The pleadings in this case are verified, and the complaint avers that the plaintiff was, on the day of the taking, the owner of and entitled to the possession of the property, and that the defendants “ unlawfully and wrongfully seized and took said property into their possession from said plaintiff,” etc. The answer denies “ that he, wrongfully and unlawfully seized, took, or carried away the said property,” etc. This is no denial of the fact that he seized and took the property from the plaintiff; it is a mere denial that it was wrongfully or unlawfully done. (Kuhland v. Sedgwick, 17 Cal. 123; Caulfield v. Sanders, Id. 569; Higgins v. Wurtell, 18 Id. 330; Busonius v. Coffee, 14 Id. 92; Blankman v. Vallejo, 15 Id. 644.) The *169 pleadings, therefore, admit that the defendant took the property from the plaintiff, and this seems to be sustained by the evidence of Atherton, who says: “ I saw the property, before it was attached, in Woodworth’s stable.” The evidence and pleadings show clearly that the plaintiff was the owner of the property, and in possession at the time of the levy of the attachment, and we see nothing in the evidence showing a right of possession in any person other than the plaintiff at the time of the commencement of the suit. The attachment gave the defendant no authority to take property owned by the plaintiff, and his seizure of the property was therefore wrongful and unlawful. If any demand whatever was necessary in this case, which is not very clear, it was sufficient to make that demand of the party in actual possession, and who was able to comply with it, and it would have been but an idle ceremony to make a demand of Atherton or Griffin, who could not have complied with it had they been "willing to do so.

Judgment affirmed.