In replevin the wrongful detention, under our statutes, is the gist of the action; and a failure to allege this fact in the petition is a substantial defect which maybe taken advantage of on demurrer, in arrest, or upon error. Fible v. Choplinger, 13 B. Mon. 465; People v. Booker, 8 Howard, 258; Gould v. Glass, 19 Barb. 185; Senny’s Ohio Code, 114, and note 6, 23 and 53; Swans PI. & Prec. 240.
In this case the defendant went to trial before the magistrate without raising any objection to- the petition, and although the record is silent as to what kind of a defense was set up, either orally or in writing, yet inasmuch as it does show a jury trial under evidence introduced by both parties, it is, we think, safe to conclude that the trial was had under an oral issue denying the plaintiffs cause of action. If so, it was not competent for the defense to raise the objection again until he could do so by a motion in arrest of judgment after trial in the District Court. But conceding under the circumstances that a motion to dismiss could be made in the District Court, before trial, yet if the party failed to stand upon the ruling of the court on such motion when made against him, and had ventured upon a trial a second time on the merits, it would be a waiver of his rights under the motion, and he could only again regularly avail himself of the objection, by a motion in arrest. Now the record shows that the defendant gave notice that he would make such a motion, but no such motion in fact appears of record to have been made.
Again, as this was a question going to the foundation of the action, we suppose, like the question of jurisdiction, it might be raised for the first time in this court. But here, too, the party has failed to point it out as error, and we cannot see how we can regularly pass upon the question in the present condition of the record.
It is true, upon being asked the court refused substari--tially to charge the jury that the plaintiff must prove, in order to entitle him to recover, that at the commencement *319of the suit the defendant wrongfully detained the property. It would have been error to have refused such an instruction if there had been any issue between the parties to which it was applicable; but there was not. And hence there was no adequate cause of complaint upon that ground. The plaintiff is not required, in his proof, to go beyond the cause of action set out in his petition.
The remaining errors assigned relate to instructions given and refused. We overrule the former class as unobjectionable1; the latter as inapplicable — neither involving principles calling for discussion.
Affirmed.
Wright, J.I consent to the affirmance of this case, but do not adopt the reasoning of the foregoing opinion in arriving at that conclusion. In my opinion, the petition does present facts constituting a cause of action, and as a consequence the motion was properly overruled, and the instruction complained of correctly refused. Not only so, but the motion was to dismiss the suit, because in substance “the affidavit or petition was not in compliance with the statute,” and this in a District Court, after a full hearing before the justice. The motion was not appropriate, ivas too general, was too late, and not sustained by the record. Let the judgment be
Affirmed.