The opinion of the court was delivered by

The defendant misconstrues the facts stated in the exceptions. His argument proceeds upon the theory that the defendant’s father was the owner of the farm on. which the defendant resided, and was in control of the same when the cattle were seized and detained, whereas the fact is otherwise.

The defendant carried on the farm at the halves in the customary way. He could not well do this without having possession of the farm. In law he had the exclusive possession and his father was there in an advisory capacity, merely. The father took the cattle while doing damage on the defendant’s farm. They were detained in the defendant’s barn-yard, and when the possession of them was demanded both father and son refused to surrender them. Both therefore were guilty of the detention. The gist of the action of replevin is the detention, not the taking. Wells on Replevin, passim.

The cattle, though rightly taken damage feasant, escaped into the defendant’s enclosure through the defendant’s defective fence and were not driven to the public pound as they should have been. The defendant therefore was a wrong-doer in detaining them when demanded.

Judgment affirmed.