Upon the trial of this cause in the court below, the jury having been out awhile, returned into court and announced that they were unable to agree, because of differences among them upon questions of law as well as upon questions of fact. The judge, thereupon, gave them additional instructions, after which they returned a verdict. We see no error in this. The practice is quite usual. Jurors not unfrequently disagree in their recollections of testimony, or misapprehend the language and meaning of the judge’s charge, and there can be no impropriety, with the parties present, in having the court repeat what has already been said, or add that which may be proper in the case for the enlightenment of the jury. It is better than that the jury should be driven into finding a verdict, in ignorance, or under misapprehension, or that the parties should be subjected to the expense and annoyance attending a disagreement. We think, however, that the exception was •well taken, to so mock of the charge so given, as directs the jury that, “if in this particular case you find no demand, you should find for the defendant.”
The action was replevin brought by Homan against *208Laboo and Ward to recover possession of a span of mules. Ward, it is claimed, wrongfully toolc the mules from Homan’s stable. Some time after the taking, as plaintiff swears, he found them in possession of defendant Laboo, from whom he demanded them, but who refused to deliver them up. The record, although containing the testimony of the defendant Laboo, with that of other witnesses sworn on the trial, shows nothing contradictory nor calling in question the truthfulness of plaintiff’s testimony on this point. Neither does it contain a statement that all the testimony taken on the trial appears therein, and we must assume that evidence was given that made the question of demand an open one ; otherwise it would have been error for the court to mislead the jury by treating that as doubtful, which was clearly settled by the testimony.
Regarding the question of demand then, as one of fact, liable to be determined against the plaintiff, the instruction of the court in respect to it became quite maternal. Particularly is this so in view of the circumstances under which it was.given. This charge was upon one of two points for advice upon which it appears the jury had returned. They could not have found Lahoo to be the owner of the property : else, why concern themselves about a- demand. So, while it is probable that, in the opinion of the jury, Homan was the owner of the property, this instruction of the court, directing them to find unqualifiedly for the defendant, in case of no demand, may have been the inducement to the verdict given. This cannot be the law. Where a defendant has come rightfully into possession of property in an action of trover and conversion, we can readily see the importance of- evidence of demand. There the action proceeds upon the tortious act of converting plaintiff's property. To show him guilty of this, evidence of a demand and a refusal while he was possessed of the property, is introduced. So in the case of dependant covenants, to *209subject one of the parties to an action at law, there must be a tender of performance, and demand made by the other. But, whatever may be the law under the statutes of those States where the action is made to rest upon the wrong involved; where before trial the defendant may have a return of the property; where the judgment is in the alternative, for the property or its value; and where, as in New York [vide 2 R. S. 523), the declaration must contain an averment of demand and refusal, in replevin under the statute of Nebraska, and under the issue here formed, I can see no necessity for a demand. As in this case, upon filing the required affidavit and bond, the plaintiff possesses himself of the property, and there is no way either before, or by force of the judgment, that the defendant can have a return of it. It is then for the jury to find, upon issue joined, to whom, at the commencement of the action,, belonged the right of property, or the right of possession. —Sections 191, 192, (7ode.
Section 191 directs that: “ In all cases where the property has been delivered- to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of the property, or the possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant, for which, with costs of suit, the court shall render judgment for the defendant.”
In the case before us, Homan claimed the property as pledgee. Laboo answering, does not disclaim ownership, nor put in the plea of non detinet, under which, with the right of Homan established as pledgee,' he might have claimed protection from costs, as an innocent party upon whom no demand had been made ; but beside denying Homan’s claim, and charging conspiracy between Homan and Ward, he avers, “ that he is the owner of said mules, *210and entitled to the possession of the same. Ownership was a proper plea, and the one he chose to tender. Homan’s right as pledgee, did not depend upon a demand ; nor . could his omission to make it, establish a right- of property in Laboo. The property, under the writ of replevin, had passed irrecoverably into the hands of Homan. If the property, at the time it was so taken under that process, was not that of Laboo, (and he claimed no special ownership) the only damage to which he was subjected, was that* of being sued while he was innocently in possession ot the mules, and before a demand was made for them. Had he chosen this attitude, he would have been entitled to a charge from the court,- that if no -demand was made he .must recover nominal damages. This would have given .him his costs. But haying pleaded property in himself, the issue required no proof of demand and refusal. Morris on Replevin, 78. It would be unjust to impose upon the plaintiff the costs of trying an issue forced upon him by the .defendant, when he is successful, because he fails to establish matters not presented by the pleadings, nor relied on by the defendant. The - judgment must be reversed, and a trial de novo awarded.
Reversed and remanded,