
    John S. Ash v. Joseph Mathes.
    
      Ownm'ship of personalty — Theory of action.
    
    WEere a man brings replevin in bis own name and as owner, for a pony-sold by bis minor daughter, and does not sue in her bebalf as guardian or next friend, it is error to treat tbe case, in charging the jury, as one of a sale by an infant, conveying no title.
    Error to Wayne. (Jennison, J.)
    Jan. 24.
    Feb. 8.
    Replevin. Defendant brings error.
    Reversed.
    
      Conel/y, Maybury & ImeJemg for appellant.
    
      Geo. 8. Hosmer (.Dickinson, Thurber <& JELosmer) for appellee.
   Campbell, J.

Ash, in his own name and as owner, replevied a pony from defendant, and recovered in a justice’s court and on appeal. Defendant brings the case up on error, alleging that the charge of the court was erroneous.

There appears in the record some testimony tending to show that defendant bought the horse, supposing he was buying of a daughter of plaintiff, as owner. The court, at any rate, gave a charge to tbe jury to the effect that if the daughter was under age and living with her father, and sold the horse, she conveyed no title and plaintiff must recover. 'We cannot but think the record is imperfect in some respects, but as it stands this clearly indicates that the title of the daughter and sale by her must have been considei'ed by the jury. It does not appear how this issue could have been properly dealt with in the way shown by the return. The suit was not brought on behalf of the daughter. Not only is it in the father’s name as sole plaintiff, but he presented his case by the evidence on the theory that he owned the horse himself. After this showing we do not see how the suit could proceed on the theory that he was suing on her behalf, as her guardian or next friend. The charge can only be explained on that idea, unless something occurred which, if inserted, would have explained it differently. On this record we are not called upon to discuss the rights of infants, and shall not attempt to do so.

There must be a reversal and new trial.

The other Justices concurred.  