The judgment in the Snow action was not binding upon this defendant for two reasons: First, because this defendant was an infant, and the notice to defend that action was, therefore, ineffective for any purpose. Second, the ground of liability in the Snow action was very different from the ground of liability in this action. Defendant cannot be made liable on the ground of negligence. Plaintiff had a special property in this team which he could protect as against one who unlawfully deprived him thereof. The team was taken from his possession by consent of his hostler, who was acting for him. That consent was obtained through a mistake innocently made. If such ■ consent had been obtained through fraud it would be void. Because obtained through an innocent mistake it was not void but was retractable. Plaintiff could, upon discovering his mistake, demand the team, and defendant’s refusal to deliver would have constituted conversion. / What transpired when defendant was at Earlville did not amount to a demand and refusal. Until defendant had refused to deliver the team upon demand he was *290guilty of no wrong which can be made the batís of a liability. I, therefore, concur in affirmance.