¶1Plaintiffs brought replevin against Jerome B. Moore, his wife and son, for a quantity of shoes claimed by them to have been purchased from them by Moore through misrepresentation as to his financial condition. At the time of the replevin the son was in charge of the goods, and- the mother had a mortgage or bill of sale upon them. The plaintiffs assert that the son was the agent of the father, while defendants claim'that he was the agent of the mother, and that the goods were in her possession.
¶2We are asked to reverse the judgment upon the ground that no demand was made for the property before the writ was issued. As against Moore, no demand was necessary. *596Cobbey, Rep. § 503, note; Koch v. Lyon, 82 Mich. 513; Shinn, Pl. & Pr. § 156; Wells, Rep. § 345, note. Iiis wife, on the other hand, was entitled to a demand, if in possession, unless her possession was fraudulent. In such case she would be in no better position than the husband. In this particular this case is distinguishable from the case of Pangborn v. Ruemenapp, 74 Mich. 572, where the defendant was in possession under a purchase made in good faith. It cannot be said as matter of law that plaintiffs could not recover without proof of demand, unless it shall be determined that there is no' evidence tending to show that the wife’s possession was collusive; and, as there was evidence from which collusion might be inferred, it was a question for the jury.
¶3The following differences between the descriptions of the property in the writ and the declaration appear, viz:
¶4(Writ.)
¶5“6 pair men’s patrol shoes.
¶612 pair youths' satin oil shoes.
¶76 pair childs’ dongola shoes.
¶86 pair men’s kangaroo shoes.
¶912 pair ladies’ glove grain shoes.
¶1012 pair men’s dongola shoes.
¶1112 pair boys’ satin oil shoes.
¶1212 pair men’s cork sole calf shoes.
¶1312 pair childs’ pebble grain shoes.
¶1412 pair men’s kangaroo shoes.
¶1512 pair men’s rubber snow ex-cluders.
¶1624 pair men’s imitation sandals rubbers.
¶1724 pair ladies’ croquet sandals.
¶1824 pair misses’ croquet sandals.
¶19Reeder & Co.” —Being the goods and chattels obtained by Jerome 'B. Moore from the said firm of Geo. II.
¶20“ Did unlawfully-detain certain goods and chattels, the property of the said plaintiffs, described in the writ of replevin in this cause, and hereinafter set forth:
¶21(Declaration.)
¶226 pair men’s patrol.
¶2312 pair youths’ satin oil.
¶246 pair childs’ dongola.
¶256 pair kangaroo congress.
¶2613 pair ladies’ glove grained.
¶2713 pair men’s satin congress.
¶2812 pair boys’ satin oil.
¶2912 pair men’s corked soled congress.
¶3012 pair childs’ pebble buttons.
¶3112 pair men’s saving calf.
¶3212 pair men’s rubber excluders.
¶3324 pair imitation sandals.
¶3424 pair ladies’ croquet.
¶3524 pair misses’ croquet.
¶3612 pair misses’ dongola buttons.
¶37—Being the goods and chattels obtained by Jerome B. Moore-¡from Geo. H. Reeder & Co.”
¶38*597The jury rendered a verdict in favor of the plaintiffs for six cents damages.
¶39It will be' noticed that neither the word “shoes” nor “sandals” (except in one instance) is used in the declaration. It further appears that none of the articles are identical in the descriptions in the writ and the declaration. This is claimed to be a fatal variance. Whether it could not be shown that most of the descriptions were different names for the same articles we need not decide. Since the abandonment of the practice of reciting the contents of the writ in the declaration, and the denial of oyer of the writ, the usual method of taking advantage of a variance between the writ and declaration has been by motion. Willard v. Missani, 1 Cow. 37; M'Farlin v. Townsend, 17 Wend. 440; 1 Chit. Pl. 244; Hole v. Finch, 2 Wils. 393. After plea it is too late to take advantage of .such variance. Garland v. Chattle, 12 Johns. 430; Cronly v. Brown, 12 Wend. 271.
¶40Error is assigned upon the. instruction to the jury that the earnings of the minor sons of' the defendants prima facie belonged to the father. We understand this to be' the law.
¶41Several other assignments of error are mentioned in the brief of appellants' counsel, but, as the exceptions relied on are not indexed, and the • pages, are not referred to, either in the assignments of error or the brief, they are not considered. See Supreme Court Buie No. 61; Pease v. Munro, 83 Mich. 475.
¶42The judgment will be affirmed.