to recover his property be made to depend upon the good faith of the defendant, when that good faith is no defense against the plaintiff's right of property or possession when a previous demand has been made? The principle upon which the New York rule rests might properly have some weight with the court upon a question of costs, where these are discretionary, or might justify the legislature in refusing costs to the plaintiff where a previous demand could have been made without serious risk or inconvenience, and the suit has been brought without such demand. But we think the principle of the rule cannot properly be extended to the right of action. We do not think the question of intent or good faith in a party receiving possession from a wrongful taker in such cases, and where the owner has been guilty of no wrong or negli gence, can have any bearing upon the right of recovery in a civil suit for the property or its value; and such is clearly the weight of authority both in England and the United States: See cases cited by counsel for plaintiff in error, and opinion of Cowen, J., in Barrett v. Warren, 3 Hill, 360, and cases cited. The taking in this case, as shown by the finding, was clearl a trespass, and would have constituted, of itself, a conversion in trover without proof of a demand and refusal. We can see no greater reason for a demand in an action of replevin under our statute. The New York Revised Statutes kept up, in the writ and declaration, the distinction between replevin in the cepit and that in the detinet; and this distinction seems to have been thought to have some bearing upon the question of a previous demand in such a case: See Barrett v. Warren, 3 Hill, 360; see also Ingalls v. Bulkley, 13 Ill. 315. It seems to have been thought that a defendant could not be said wrongfully to detain the property in such cases till he had refused to give it up on demand; and this is the ground taken by the defendant in error here. But the answer to this is, that our statute, so far as regards the form of action, recognizes no distinction between replevin for taking and that for detaining; but the action is, in form, in all cases for detaining only: Comp. Laws, secs. 5010, 5028. The declaration, therefore, will be supported, as well by proof of an unlawful or wrongful taking as of a wrongful detention. The judgment must be reversed, and a judgment entered in this court for the plaintiff, for six cents damages and the costs of both courts. The other justices concurred. BILLS OF EXCEPTION, WHAT TO CONTAIN, ETC.: Johnson v. Jennings, 60 Am. Dec. 323, and note; Duggins v. Watson, Id. 560; Pomroy v. Parmlee, 74 Id. 328; how construed: Perminter v. Kelly, 54 Id. 177; Donnell v. Jones, 52 Id. 194. CONSTRUCTION AND EXTENT OF AGENT'S AUTHORITY: Wood v. McCain, 42 Am. Dec. 612; Upton v. Suffolk Co. Mills, 59 Id. 163; Towle v. Leavitt, 55 Id. 195; Joyce v. Duplessis, 77 Id. 185; Appleton Bank v. McGilvray, 64 Id. 92; Reitz v. Martin, 74 Id. 215; Sav. Fund Soc. v. Sav. Bank, 78 Id. 390. WHEN DEMAND AND REFUSAL NOT NECESSARY IN ACTION OF TROVER: Buel v. Pumphrey, 56 Am. Dec. 714; Hyde v. Noble, 38 Id. 508. Demand and refusal as evidence of conversion: Hawkins v. Hoffman, 41 Id. 767; Magee v. Scott, 55 Id. 49; Dezell v. Odell, 38 Id. 628. THE PRINCIPAL CASE IS CITED to the first point stated in the syllabus, in the following cases: Amboy etc. R. R. Co. v. Byerly, 13 Mich. 442; Peabody v. McAvoy, 23 Id. 527; Peck v. City Nat. Bank, 51 Id. 360; and is cited to the second point stated in the syllabus, in Thomas v. Sprague, 12 Id. 123; Yelver ton v. Steele, 40 Id. 540; Downey v. Andrus, 43 Id. 66; Earle v. Westchester Fire Ins. Co., 29 Id. 417. It is cited to the point that the finding of facts is to be considered as in the nature of a special verdict, in Burk v. Webb, 32 Mich. 180; Peck v. City Nat. Bank, 51 Id. 360; to the point that a mere inference of fact, drawn from evidence, cannot be converted into matter of law by setting it up as such in the finding, in Hogelskamp v. Weeks, 37 Id. 425; to the point that the appellate court cannot supply omissions from a finding of fact, by inferences and presumptions, in Briggs v. Parsons, 39 Id. 404. So It is cited to the point that replevin will lie to recover, even from a bona fide purchaser, property which had been taken by the latter's vendor without the consent or authority of the owner, in Parish v. Morey, 40 Mich. 419; and to the point that the action cannot be defeated by a failure to make a prior demand, in Le Roy v. East Saginaw City Railway, 18 Id. 240; Ballou v. O'Brien, 20 Id. 324; Whitney v. McConnell, 29 Id. 14; Adams v. Wood, 51 Id. 414. THE PRINCIPAL CASE IS DISTINGUISHED in Campbell v. Quackenbush, 33 Mich. 288; Rodgers v. Brittain, 39 Id. 479, holding that replevin would not lie, under the particular state of facts disclosed, without a prior demand. THAT AUTHORITY OF AGENT TO SELL GOODS is not authority to exchange them in barter, see Organ Company v. Starkey, 59 N. H. 142. AX. DEG. VOL LXXXI-51 INDEX TO THE NOTES. ACKNOWLEDGMENT, deputy may take, 117. ANIMALS, liability for injuries done by, when turned loose in highway, 712 ATTACHMENT, action for wrongful, attorney's fees as damages, 471, 473. action for wrongful, complaint in, 470. action for wrongful, damages, special should be alleged, 471. action for wrongful, defenses in, 475. action for wrongful, evidence in, 471. action for wrongful, form of, 469. action for wrongful, not confined to suit on bond, 487. action for wrongful, parties to, 469. action for wrongful, pleadings in, 470. action for wrongful, set-off in, 475. attorney's fees, recovery of, 471, 473. bonds, action on, accrues immediately on breach of condition, 467. bonds, action on, defects which are fatal, 475. bonds, action on, not maintainable till validity of writ is determined, 468. bonds, action on, on voluntary abandonment of suit, 469. bonds, action on, statutory provisions concerning, 467. action for wrongful, what conclusive that writ issued wrongfully, 488. burden of proof in actions for wrongful, 472. damages, exemplary, 474. damages, measure of, 472. damages, remote or speculative, 474. depreciation of property as an element of damage, 473. form of action for malicious, 478. liability for seizure of property of stranger to the writ, 478. malicious, action for, 476. malicious, action for, burden of proof in, 477. malicious, action for, pleadings in, 479. malicious, damages for, 479. probable cause for, 477. BAIL, admission to, after indictment for murder, 87. admission to, after indictment for murder, evidence which may be re ceived, 87. admission to, because defendant is not speedily brought to trial, 88. admission to, because jury disagrees, 89. admission to, because of ill health of defendant, 89. admission to, in cases not capital, 87. BAIL, admission to, when party is accused of murder not of the first degree, 87. admission to, when should be refused, 89. CONTRACT, implied and express, cannot exist at the same time, 292. by attorney in fact, must be in name of principal, 778. by attorney in fact, must be in same form as other deeds, 776. by married woman, her name must appear in body of deed, 492. CORPORATION, certificates of stock assigned in blank are not negotiable, 706. liability for transferring certificates of stock to one not entitled thereto, offer to become shareholder, when revocable, 393. president, implied powers of, 137. ratification by, of contract, how proved, 137. subscription to stock of, acceptance of, whether necessary, 393. subscription to stock of, agreement to make, corporation when formed subscription to stock of, avoiding for fraud in obtaining, 401. subscription to stock of, conditional, 398. subscription to stock of, conditions, waiver of, 399. subscription to stock of, construction of, is for the court, 396. subscription to stock of, difference between and agreement to subscribe for stock in corporation to be formed, 392. subscription to stock of, estoppel to deny existence of corporation, 402 subscription to stock of, fraud in obtaining, 401.. subscription to stock of, imposes obligation to pay installments and as sessments, 393. subscription to stock of, in what may be payable, 396. subscription to stock of, irregularities in, 395. subscription to stock of, must be in writing, 396. subscription to stock of, need not be in a book, 395. subscription to stock of, notice to pay, is not prerequisite to action, 894. subscription to stock of, parol evidence to vary terms of, 396. subscription to stock of, who may receive, 397. subscription to stock of, who may release from, 399. COUNTY, liability for neglect of its officers, 152. CRIMINAL LAW, arson, building on which may be committed, 67–69. arson, burning accidentally while intending to commit another crime, 64. |