¶1delivered the opinion of the Court:
¶2In an action of replevin it is essential that the plaintiff should be entitled to the possession of the property at the time when the writ is sued out. Assuming the plaintiff’s version of the facts to be true, he was not entitled to the possession of this property at' the time that he commenced his action. If his allegations be true, he undoubtedly had a right to rescind the contract by offering to return the note. He, however, was not in a condition to bring his action until he had offered to return the note and demanded the property.
¶3The judgment must be reversed and the cause remanded.
¶4Judgment reversed.