Byrne v. Byrne

62 N.W. 413, 89 Wis. 659, 1895 Wisc. LEXIS 186

• Court: Wisconsin Supreme Court
• Decided: March 5, 1895
• Status: Published

Opinion

WiNslow, J.

The defendant claims, first, that the horse was in the custody of the law; and, second, that a demand was necessary before suit.

Our statute provides (R. S. sec. 1624), in substance, that an officer who arrests any person for larceny shall secure the property alleged to have been stolen, if possible, and upon conviction of the offender it shall be restored to the owner. In this case the constable took possession of the horse when he arrested the defendant for its larceny. If he had retained possession of it, there would probably be no doubt that it was in the custody of the law and not subject to replevin. The court, however, did not consider its retention by the officer as necessary to the criminal prosecution, and expressly ordered that it be delivered to the defendant upon execution of a certain bond which the defendant duly executed. The court also expressly declared that the right of the true owner to maintain replevin for the property •should not be impaired by the order. Under these circumstances, the defendant’s possession of the horse cannot be called the possession of the law. The court and the law had voluntarily relinquished possession and taken in its place a bond with penalty. The defendant might discharge the bond either by returning the horse or by paying the money damages incurred under its terms for nondelivery. Doubtless, also, the judgment in this replevin action would be a good defense to any action upon the bond, the right to maintain such action having been preserved by the order under which the bond was given.

There was no necessity for a demand before suit, because the defendant, by his answer and in his evidence, claimed title to the horse. “ "Where both parties claim title and the right of possesion incident thereto, no demand is necessary.” Eldred v. Oconto Co. 33 Wis. 133.

By the Court. — ■ Judgment affirmed.