Hayden

The plaintiffs, by one of their firm, commenced a negotiation with Uriah Edwards at Petaluma, for the purchase of a quantity of wheat, and, before the bargain was completed, took the wheat from the premises of Edwards in his absence, and subsequently delivered it to the defendant, to be transported to San Francisco and there to be delivered to the plaintiffs. The wheat was brought to San Francisco by the defendant, and there Edwards interfered and demanded the property, and forbade its delivery to the plaintiffs. The defendant thereupon, refused to deliver the wheat to the plaintiffs, when this action was brought to recover it, in which the defendant sets up the title and claim of Edwards as a defense.

An objection is taken to the recovery under the complaint in this action, because the wheat is alleged to have been wrongfully taken by the defendant from the plaintiffs, whereas the proof is that it was delivered to him as a bailee. Under the old system of pleadings, this objection, in some actions, would be fatal, but in our action to recover personal property, the only essential facts are that the defendant has in his possession property belonging to the plaintiff which he…