Louthain v. Fitzer. The appellee, however, insists that the court, after verdict, will consider the words as used in their worst sense. This is the rule upon a motion for a new trial. Blickenstaff v. Perrin, 27 Ind. 527. And on a motion in arrest of judgment, or an assignment of error that the complaint does not state facts, many defective averments will be aided by a verdict, but not when the complaint is questioned by a demurrer. In such case a verdict can not aid a defective averment, nor supply a good cause of action. Where the language is susceptible of an innocent and a criminal meaning, the court, after verdict for the plaintiff upon a motion for a new trial, in arrest, or upon an assignment of error, will adopt the latter meaning, and where the language is rendered actionable by extrinsic circumstances defectively averred, the verdict will aid them, but language not actionable per se, in the absence of extrinsic circumstances, will not be so regarded, even after verdict. The demurrer was improperly overruled, and for this error the judgment should be reversed. PER CURIAM.-It is therefore ordered upon the foregoing opinion that the judgment be, and it is hereby, in all things reversed, at the appellee's costs, with instructions to sustain the demurrer to the second paragraph of the complaint, with leave to amend, etc. No. 8634. LOUTHAIN v. FITZER. REPLEVIN.-Evidence.-Possession.-To sustain replevin the evidence must show that the defendant was in actual or constructive possession of the property at the time of the commencement of the action. VOL. 78.-29 Louthain v. Fitzer. SAME.-Sheriff-Execution.-Delivery Bond.-Demand.-Demurrer to Eridence. In replevin against a sheriff evidence that the property belonged to the plaintiff, and was levied upon under an execution against his father; that the sheriff then took from the plaintiff a delivery bond and permitted the property to remain on the farm where he resided; and that afterwards the plaintiff formally demanded and was refused a return of the property to him, is sufficient on demurrer to sustain the action. From the Cass Circuit Court. D. C. Justice and D. B. McConnell, for appellant. NIBLACK, J.-Action of replevin by Henry C. Fitzer against William P. Louthain, for the recovery of several horses, a crop of wheat in stacks, a crop of oats in shocks, and a crop of corn growing in the field. Answer in general denial. After a jury had been empanelled, and the evidence for the plaintiff was closed, the defendant demurred to the evidence, and the jury were discharged. The court overruled the demurrer to the evidence, adjudged the plaintiff to be the owner of the property in controversy, made an estimate of its value, and rendered a judgment for its recovery against the defendant. Error is assigned only upon the decision of the court overruling the demurrer to the evidence. It was made to appear by the evidence that at the time of, and previous to, the commencement of this action, the defendant was the sheriff of Cass county; that as such sheriff he had levied on the property in dispute as the property of one John Fitzer, the father of the plaintiff, upon an execution in his hands against him, the said John Fitzer; that, upon making such levy, the defendant had taken from the plaintiff a delivery bond for the property, and had thereupon permitted all the property to remain on the farm upon which the plaintiff resided; that, after his execution of the delivery bond, the plaintiff formally demanded a return of the property to him, but the defendant refused to return the same, or Louthain v. Fitzer. any part of it. The evidence, also, fully established the ownership of the plaintiff in the property. The only question presented in this case is, Did the evidence show such a taking and detention of the property as were necessary to enable the plaintiff to sustain this action? It is an elementary principle, as applicable to actions of replevin, that the defendant must have been either in the actual or constructive possession of the property at the time of the commencement of the suit. Krug v. Herod, 69 Ind. 78; Morris Replevin, 191. But what constitutes sufficient evidence of such possession? Wells on Replevin, at section 54, says: "Proof of any unlawful taking or control of the goods of another is sufficient to sustain an allegation of taking, without proof of an actual forcible dispossession of the plaintiff.” Further on, at section 142, the same author says: "Where the defendant was an officer who had levied on property, but did not remove it, the defendant in the execution who still retained the goods, will not be permitted to sustain replevin against the officer, as the possession was still in himself; but when an officer levies on goods, and takes an inventory, and directs a receiptor to prevent their removal, he has a sufficient possession to enable the owner to sustain replevin. And such a taking is sufficient ground on which to base an action against the officer." In Latimer v. Wheeler, 3 Abb. App. Dec. 35, it is said that, "In an action for possession of personal property, it is not necessary to show that defendant had possession in fact when the action was brought. If he had been previously in possession, and was present at the time of a demand on, and refusal by, another person, at the place where the goods were, he can not defend on the ground that he had parted with the possession to such person. Any unlawful interference with the property of another, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain the action." These authorities, which appear to be well supported by other decided cases, fully sustain the court below in over Benson, Adm'r, v. Liggett. ruling the demurrer to the evidence, and in rendering judgment upon the evidence against the defendant. Allen v. Crary, 10 Wendell, 349; Fonda v. Van Horne, 15 Wendell, 631; Knapp v. Smith, 27 N. Y. 277. The judgment is affirmed, with costs. No. 8457. BENSON, ADM'R, v. LIGGETT. PRINCIPAL AND AGENT.-Ratification.-Decedents' Estates.-A., without authority, received for B. money derived from the sale of real estate by a commissioner in partition, and notified B. of the fact; B. disputed the validity of the sale and refused to accept or have anything to do with the money; thereupon A. loaned the money to C. who was then solvent, but afterwards became insolvent, taking C.'s note, payable to B. Held, that A.'s administrator was liable to B. for the money so received. Held, also, that the bringing of the suit ratified the receipt of the money by A., but not the loaning. SAME.-Authority to Loan Does not Authorize Loan without Security.—Trust and Trustee. An agent or trustee, with authority to loan, may not loan on the unsecured obligation of the borrower, much less one who has no authority beyond what is implied from possession and the duty to keep safely. From the Cass Circuit Court. D. B. McConnell, for appellant. R. Magee and N. O. Ross, for appellee. WOODS, J.-The appellee filed his claim against the appellant as administrator of the estate of Mary Liggett, for money received by the deceased in trust for the appellee from John Davis, commissioner in partition for the sale of real estate in which the appellee had an interest. The appellant insists that the circuit court erred in sustaining a demurrer for want of facts to the fourth paragraph of his answer, which was in substance as follows: Benson, Adm'r, v. Liggett. "That the decedent, while in life, as the attorney of the plaintiff, with general authority to manage the plaintiff's property in Indiana, received from John Davis, commissioner, a certain sum of money, purporting to be the share of the plaintiff in certain real estate; that, immediately upon receipt of the money, she notified the plaintiff of the fact, and that she held the money subject to his order; that the plaintiff denied the validity of the sale, and positively refused to accept the money, told her to keep it, and that he never would take it; that thereupon the decedent, having no use for the money and no safe way of keeping it, loaned it in the name of the plaintiff to one Charles B. Lasselle, taking his note therefor; that she exercised the utmost care and diligence in loaning the money, Lasselle being at the time solvent and worth a large sum of money, and the owner of a large and valuable property in Cass county, Indiana; that the plaintiff was promptly notified of the loan at the time it was made and never objected to the person to whom the loan was made, nor to the fact of the loan, but simply refused to have anything to do with the money, and before and after the filing of this claim refused to accept Lasselle's note, which the defendant brings into court for the use of the plaintiff. Wherefore," etc. The following extract from the appellant's brief contains the substance of the argument made in his behalf: "By now seeking to hold the estate of the decedent he has waived all right to deny the authority of his mother to take the money as his agent. By refusing to receive the money when she, having possession of it as his agent, tendered it to him, and by declaring that he would not receive it, that he had no claim upon it, when it was his, he absolved her from any and all duty, other than to take ordinary care of the money, and see that it was safely kept, until it could be disposed of; and by his same acts she was impliedly given license to dispose of it for him, in any way and manner that to her judgment might seem best for him." |