Upon the trial in the court below, a transcript of the record of Boulder county, showing that upon a hearing before the clerk of that county, the property in controversy was awarded to appellant, was offered as evidence, and, upon objection by appellee, excluded from the jury. It is contended that this paper should have been admitted for the purpose of showing that appellant’s possession of the mule was lawful, and .that such possession would only become unlawful upon demand made after the award made by the county clerk, and a refusal by appellant *120to deliver the property. The argument is founded upon the assumption that appellee agreed with appellant to submit the matters in controversy to the decision of the county clerk. There is no evidence of any such agreement and. therefore the argument fails. It is true, that it is stated in the transcript that the clerk proceeded upon the agreement of the parties, but it is not necessary to say that this is not sufficient. As there is no evidence of any authority in the clerk to decide the controversy the paper was properly excluded. There are other objections to the transcript, but it is not necessary to dwell upon them.

It is also urged that the evidence in the court below was not sufficient to show a demand and refusal. Upon this point there was evidence tending to prove that appellee demanded the property the day before the suit was commenced, and that appellant agreed to take it to Boulder the next day. In accordance with this agreement the mule was taken to Boulder on the following day, when appellee replevied it. Respecting the demand there seems to be no question, and if we connect the evidence with the acts of appellant as shown by the record, the refusal will be no less clear. When appellant arrived at Boulder on the day the suit was brought, he did not surrender the property to appellee, but, upon service of the writ, he gave bond and retained possession of it and contested the suit at every step. If he had delivered the property at that time, even if the writ had been in the hands of the officer, the controversy would have been reduced to a question of costs. Upon this point the acts of appellant are as convincing as the most positive testimony. He had the opportunity to comply with appellee’s demand for the property, and he declined to accept it. If he took the property to Boulder, for the purpose of surrendering it to appellee, he could have done so, and the fact that he did not deliver it was snfficient to warrant the jury in finding that he had no intention to give it up without litigation. It is not necessary that a defendant in replevin should expressly refuse to comply with a demand for property. If he neglect to *121deliver it and contest the suit, he cannot, after verdict, be permitted to say that he intended to avoid litigation by surrendering the property before suit. Other errors assigned have not been mentioned in the argument, and we think it unnecessary to notice them.

The judgment of the district court is affirmed, with costs.

Affirmed.