89 Wis. 659 | Wis. | 1895
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,
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.