It seems from the record that the nonsuit was placed upon two grounds: first, that at the time the suit was commenced the most valuable part of the property was in the actual possession of the plaintiff; and second, that no demand was made upon the defendant for a surrender of the property, before the suit was commenced. Upon the argument in the court, the learned counsel for the appellant contended that no demand was necessary to enable the company to maintain the action of replevin for the machine, because he says the respondent puts his defense upon his ownership of the machine, and denies the ownership of the appellant. There is no evidence in the case, so far as we are able to discover, that the respondent ever made any claim of ownership of the property. There is evidence that his wife made such claim before the action was brought, but it does not appear that such claim *220was made in the presence o£ the husband or by his direction, and we do not think the claim of the wife should have the effect, in a case of this kind, to charge the respondent with a wrongful conversion of the appellant’s property, without full proof that she was authorized to speak and act for him. There is no direct evidence, and no circumstances disclosed, which would tend to prové such authority, except the fact that she paid the purchase money when called upon, except the last payment.
Under the contract the possession of the machine was rightfully in the respondent, and a mere failure to make the payments according to the agreement did_ not render such possession unlawful. The appellant might, if it saw fit, let the possession remain with respondent and sue him upon the contract for the payment of the purchase price. The contract says the appellant may, at its option, take the machine away if the payments are not made according to the terms of the contract. A fair construction of this contract would require the appellant to give notice to the respondent that it would exercise its option to take away the machine, on account of the nonpayment of the purchase money, before an action could be commenced to get possession thereof. A demand of possession, or notice to the respondent that the company would exercise its option to take possession of the machine, was especially necessary after the company had failed to take immediate advantage of that provision in the contract, and suffered the machine to remain in the respondent’s possession for several months after such failure, during all that time demanding payment of the five dollars claimed to be due. Under such circumstances, if the appellant determined to avail itself of the forfeiture of the money paid, a^d assert its right to the possession and ownership of the machine, notwithstanding it had received eight-ninths of the purchase money, it was clearly its duty to give the respondent unequivocal notice of such determination on its part before exercising that right. Smith *221v. Newland, 9 Hun, 553; Johnston v, Whittemore, 27 Mich., 463; Giddey v. Altman, 27 Mich., 209; Deyoe v. Jamison, 33 Mich., 94; Cushman v. Jewell, 7 Hun, 525-530; Hutchings v. Munger, 41 N. Y., 155-158.
Forfeitures are not favored by the law, and the party seeking to enforce them must see to it that he has done everything on his part which entitles him to claim their enforcement. The respondent should not be put to the costs of an action without notice that the appellant would exercise the option reserved in the contract to repossess itself of the machine. The status of the parties under the contract, so far as the right to possession is concerned, was not changed by the failure to pay according to contract, but by the exercise of the option reserved to the appellant to repossess itself of the machine, and notice of such option given to the respondent. "We are of the opinion that a notice given to the wife when she is living with her husband, and when there is no pretense that the husband is keeping out-of the way to avoid notice and demand upon him, is not notice to or demand upon the husband, unless it be shown that the husband has constituted his wife his agent for the purposes of receiving such notice and demand. The mere fact that she made the payments which were made, is not sufficient evidence of such agency. The contract in the case shows that the husband, and not the wife, was the purchaser of the machine and entitled to the possession thereof under the contract; and, the machine being one which would ordinarily be used by the wife, her possession of it. would be the possession of the- husband; and such possession, being rightful under the contract, could only be made wrongful as to him upon failure to perform the contract, and notice by the appellant that it would exercise its right to repossess itself thereof. There being no evidence establishing the fact that the respondent was ever notified that the appellant proposed to avail itself of the option reserved in the contract before the action was commenced, the nonsuit was properly granted for that cause.
*222We are also of the opinion that at the time the action was commenced the appellant had the possession of the machine, and that in consequence thereof no right of action to replevy the same existed at the time the suit was commenced. The warrant of replevin is for a sewing machine. When the affidavit required by statute was made, and when the warrant was signed, verified, and handed to the plaintiff’s agent, the defendant did not have the sewing machine in his possession. The material parts constituting the sewing machine were in fact in the actual possession of the plaintiff. It is true the defendant had possession of the stand on which the machine was placed when in use, but such stand is not properly described as the sewing machine which was the subject of the action. Upon this point the learned counsel for the appellant insists that the suit was not in fact commenced until after the machine had been returned to the possession of the defendant, and after a demand had been made for its return to plaintiff. His theory is that the action is not commenced for any purpose until the warrant is placed in the hands of an officer for service. We think this is a mistaken construction of our statute regulating the commencement of actions of replevin in a justice’s court. Section 8731, K. S., provides that “actions of replevin for the recovery of the possession of goods and chattels in justice’s court shall be commenced by warrant, which shall be returnable,” etc. Section 3733 provides that “no such warrant shall be issued until an affidavit shall be filed with the justice, made by the plaintiff or some one in his behalf, stating that the plaintiff is then lawfully entitled/ to the possession of certain personal property, giving a particular description thereof and of the value, and that the same has been unjustly taken and is unjustly detained (or that the same is unjustly detained, as the case may be) by the defendant, naming him,” etc. Section 3739 provides “ that the affidavit shall be deemed the complaint in the action, and the defendant may answer thereto as in other cases; ” and sec*223tion 3742 provides that “in sncb action it shall be necessary for the plaintiff, whether the defendant be present or not, to prove all the allegations of his complaint,” etc.; the word “complaint,” nsed in this section, meaning the affidavit required to be made by section 3733, above quoted.
Under these provisions of the statute we think it is evident that the action must be considered commenced when the affidavit is made and the warrant is signed by the justice and placed in the hands' of a third person with intent to have the same served, whether such person be an officer entitled to serve the same or some other person who receives the same with intent to place the same in the hands of an officer for service. Any other construction of the statute would nullify the object of the statute, which requires the making of the affidavit before the writ shall issue, or permit an affidavit which was false in fact to be a good foundation for the action. See Darling v. Tegler, 30 Mich., 54. The laws of Michigan upon the subject of re-plevin in justice’s court are substantially the same as the sections of the Revised Statutes above quoted. See Comp. Laws Michigan, 1871, §§ 6726, 6732. In the case above cited the supreme court of that state say: “No demand was made before the writ of replevin was sued out and the affidavit made. The officer holding the writ then made a demand for the lumber. Defendant pointed it out, but refused to deliver it up, and the officer thereupon replevied it. As he made but one demand, and as that was made while he had the writ in possession and ready for service, we think such demand cannot be regarded as sufficient to justify the action. Whatever may be the case under different systems of practice, our statutes expressly require an affidavit to be made after the cause of action has accrued. The writ cannot issue nor the affidavit be made unless the plaintiff has become entitled to the possession and the defendant is guilty of an .unlawful detention. And in this case nothing but a refusal to comply with a proper demand could make the detention unlawful.” It seems to us *224that tbe view of this question taken by the court in this case is entirely in harmony with the requirements of the statutes, and that any other construction would defeat the whole object of requiring an affidavit to be made by the plaintiff previous to the issuing of the warrant, setting ^orth the facts showing that a cause of action exists in his favor.
In the present case the evidence clearly shows that when the affidavit was made there was no unlawful detention of the sewing machines sought to be replevied. The undisputed proof shows that the material parts which constitute the machine were then in the actual possession of the plaintiff itself. It was impossible, therefore, that it could at the same time be unlawfully detained by the defendant. The plaintiff could not restore the property in controversy to the possession of the defendant after suit brought, and then maintain his action because it was then unlawfully detained after demand. But the learned counsel for the appellant insists that the plaintiff should be entitled to recover without any proof of demand, because he alleges that the defendant by his answer does away with the necessity of proving a demand, by setting up property in himself as a defense. If this wTere so, it would not help the case of the appellant, because, as we have said above, the proofs show that the respondent did not and the appellant did have the actual possession of the machine when the action was commenced; and upon this proof, under the answer setting up a general denial of the facts set up in the complaint, the respondent was entitled to a judgment of nonsuit against the appellant. It is unnecessary, therefore, to determine what would be the effect of a separate answer following an answer denying all the allegations of the complaint in replevin, setting up title in the defendant, or in a third person, upon the question of the necessity of proof of a demand before suit brought, in a case where it appeared that the defendant’s possession was rightful until such a demand had been made. If there had been no general denial of all the allegations of the *225complaint, there can be little doubt but that the position of the learned counsel for the appellant would, be correct. We would suggest, however, that a special answer, following a general denial, alleging property in the defendant, does not in any way enlarge the defendant’s rights upon the trial, as that fact could be given in evidence under the general denial. Timp v. Dockham, 32 Wis., 146. We see no reason for holding that such special allegation should destroy the effect of the general denial, and relieve the plaintiff from making all the proofs he would be required to make had the special answer been omitted.
It is insisted that the judgment ,is irregular, as there is no order directing the return of the property to the defendant. This defect in the judgment, if any, is not prejudicial to the appellant, and upon his appeal it is no cause for reversing the judgment.
We express no opinion as to what the rights of the respective parties to this' action would have been under the contract above quoted, had the plaintiff, before suit brought, given notice to the defendant that, unless the balance of the purchase money was paid, he should take advantage of the option reserved to him in the contract, and take possession of the machine.
By the Court.— The judgment of the county court is affirmed.