| Ill. | Dec 15, 1851
This was an action of replevin in the detinet alone, and it was undoubtedly necessary for the plaintiff to prove a demand and refusal, in order to establish an unlawful detention by the defendant. The officer testified that, at the time he executed the writ, the defendant told him that the plaintiff had sent a negro boy and another boy down after the horse, but that he would let neither of them have him; but that, if Bulkley had come himself after him, and paid all damages, he should have had him ; that he did not consider the demand of the boys legal or good; that he did not know any thing about the boys; that these boys were mere minors. The second instruction given for the plaintiff was as follows: “ That the age or color of the plaintiff’s agent, or the doubts of the defendant as to the authority of the agent, can have no legal influence in the decision of this case.” This instruction, we have no doubt, was erroneous. It took from the jury the decision of the question, whether the defendant refused to deliver the horse to the boys because he reasonably doubted their authority to receive him for the' plaintiff. Unless he was reasonably convinced that they had such authority to demand the horse, he iwas not bound to deliver him to them, and his refusal to do so would not make the detention unlawful. In this action, for the unlawful detention alone, the same proof was required which would have been necessary had the action been for trover and conversion. Beebe v. Bunn, 3 Eng. (Ark.) Rep. 565.
Notwithstanding the case of Watts v. Porter, (2 Mason C.C., 77" date_filed="1820-06-15" court="None" case_name="Watt v. Potter">2 Mason, 77,) we will not say that the authority of the agent should have been in writing; but then, the, circumstances showing their authority should have been such as a prudent man would have acted upon, knowing that he would have been responsible for the horse, if delivered to a person who had not authority to receive him. That was a question for the jury to determine, and should have been, submitted to their consideration. The doubts of the defendant, as to that authority, certainly had something to do with the case. It is true that, at the time of the service of the writ, the defendant admits that the plaintiff had sent the boys for the horse; but that does not show that he was convinced of that fact at the time of the demand. It is also true, that the defendant seems to have entertained in his own mind an intention to retain the horse till his damages were paid; but such intention, of itself, would not make the detention unlawful, until he refused to deliver him upon a demand made by the plaintiff himself, or by an agent, whom the defendant believed was authorized to receive him; and that he had doubts on that subject seems to be indicated from his remark, — that he did not know any thing about the boys. At all events, there was evidence on that subject which should have been submitted' to the jury for their consideration.
The judgment of the Circuit Court is reversed, and the cause remanded. Judgment reversed.