Opinion by
Lewis, J., Beatty, C. J.,concurring.
The plaintiffs bring this action to recover possession of certain personal property, which they allege is wrongfully detained from them by defendant.
The answer denies the plaintiff’s title and right of possession, admits the detention, but denies that such detention is wrongful; it is then alleged that the defendant is the owner, and entitled to the possession of the property.
Upon these pleadings, the case was tried without a jury, the Judge below finding the facts and rendering judgment thereon in favor of the plaintiffs. From this judgment the defendant appeals, claiming that it should be reversed on the following finding: “ That the defendant came into possession of said property by purchasing the same for value of one Lamphier, who had obtained possession thereof of plaintiff’s agent through fraud and misrepresentation, which was not however known to the defendant. That no demand of possession of the property had been made of defendant by the plaintiffs before the commencement of the action.”
It is urged by counsel for appellant that as the findings of fact show no tortious taking, but simply a wrongful detention of the property sought to be recovered, it was necessary for the plaintiff, before he could properly recover, to show that he demanded a delivery of the property from defendant. Whether such a demand was necessary before suit brought, is the only question to be determined upon this appeal. It has sometimes been said that when one has acquired rightful possession of property, an action of replevin cannot be maintained against him to recover it until demand by the owner, and a refusal.
But if there be a tortious taking, it is conceded no such demand is necessary. ( Galvin v. Bacon, 11 Maine, 28; 4 Greenleaf, 306.) Indeed, it was formerly held that the action of replevin could only be maintained where there was an unlawful of tortious taking; but it is now settled beyond all question, that it may be brought to recover property unlawfully detained; and so, under the Practice *559Act of this State, property unlawfully detained may be recovered in an action analogous to the common law action of replevin.
But why is a demand upon the defendant to return the property necessary ? If it be necessary at all, it is simply for the purpose of evidence, and nothing more. If the defendant rightfully obtained possession of the property, that possession does not, it is said, become unlawful until demand is made by the owner. Such doubtless may often be the case, nevertheless the wrongful detention is the material and issuable fact. When it is shown that the owner delivered the' possession of his property to an agent or bailee, the presumption would of course be that he held the possession subject to the will of the owner, until some fact is shown inconsistent with such presumption.
Our method of rebutting such presumption is by pi’oving that the owner demanded the property, and that the defendant refused to deliver it. It is not however by any means the only method. But whether it be or not, the unlawful detention and not the demand is the ultimate and material fact to be established. Under our practice, the plaintiff makes out a case when he shows property or right of possession in himself, and an unauthorized detention by the defendant.
If he can establish these facts without showing a demand, why is his case not made out ? We know of no well-considered case where it has been held necessary to plead a demand. Hence it does not seem' to be considered a fact necessary to perfect the plaintiff’s right of action. If the demand be necessary to complete his right, it should surely be pleaded; and an omission of such an allegation from the complaint would make it demurable. .
We conclude, therefore, that a demand serves no purpose beyond that of showing that the detention is unlawful, and where that can be shown in any other way, it is unnecessary to prove a demand.
In this case, even admitting the defendant’s possession to have been lawful, his answer rendered it unnecessary for the plaintiff to prove a demand; because the only issue raised by the pleadings is upon 'the title and the value of the property, the defendant admitting- the detention and justifying by claiming title and right of possession in himself. Upon these -pleadings clearly it was only *560necessary for the plaintiff to show that he was the owner, and entitled to the immediate possession of the property. That being established, the presumption would be that the detention would be wrongful.
He certainly could not be compelled to establish anything beyond these issuable facts.
Why then should the fact that no demand had been made by the plaintiff defeat his right of recovery ? It was held in the case of Seaver v. Dingley, 4 Greenleaf, 306, that in replevin of goods, the original taking of which by the defendant was lawful if he plead property in himself, it is not necessary for the plaintiff to prove a demand for the goods previous to the bringing of suit.
That case is directly in point, and fully sustains dur conclusion upon this question.
Judgment affirmed.