Roach v. Binder , 1 Colo. 322 ( 1871 )

Hallett, C. J.

Replevin before a justice of the peace, to recover a cow and calf, thence removed to the district court by appeal. The calf was not found, and appellee took judgment for the cow. It seems that the animal strayed from, appellee’s herd, and subsequently appellant purchased her from one Rooney who had possession of her, and who in turn had purchased her from some other person. As appellant acquired the animal in good faith by purchase from one in possession, we do not understand that he can be made liable in replevin, unless upon demand before suit or something equivalent to it. Ingalls v. Bulkly, 13 Ill. 315 ; Clark v. Lewis, 35 id. 423, is not opposed to this view. In that case the purchase was made at a sale under a town ordinance, and the purchaser was affected with notice of the illegality of the proceeding.

The district court instructed the jury that a demand was necessary, and added: “ The jury may infer a demand of the property from the actions, conduct and conversation of the parties.”

In so far as this comprehends the actions, conduct and conversation of the appellee, who was plaintiff below, which did not occur in the presence of appellant, it is of course erroneous. We regret that the evidence of demand and refusal is not clear enough to authorize us to overlook this error, but, as the jury may have been misled by the instruction, the judgment of the district court must be réversed with costs, and the cause remanded.

Reversed.