dissenting.
In this action appellant pleaded non detmet and non cejoit and that he took the property under a judgment and execution against the Sylvan Encampment Co.
Appellee testified that at the time when he commenced this suit the property by him replevied was in “ the hands of James H. Gilbert, sheriff,” and left the stand. Being recalled, he testified that he demanded possession of the property and “ they refused to give them up.” Upon cross-examination he said he talked with a man there “ who appeared to be in charge—constable, I suppose.”
“ Q. You mean the sheriff % A. Sheriff.
Q. Do you know he was the sheriff ? A. Well, I don’t really know whether I did or not.”
The demand being upon the person in charge of the property was, I think, sufficient.
Demand should be made upen one who has possession of the goods and is able to deliver them in compliance with such demand. Wells on Replevin, Sec. 375.
When a defendant contests the case all through the trial upon a claim of superior right to the property, he can not afterward set up a want of demand as a reason for his failure to surrender. When he desires to reply on a want of demand, he should show a willingness to deliver the goods upon a proper one, and that none has been made. Wells on Replevin, Sec. 374.
Proof of any circumstance which would satisfy a jury that a demand would have been unavailing (as a refusal by the defendant to listen to one, or a statement in advance that he will not deliver), will be sufficient to excuse proof of a demand. Wells on Replevin, Sec. 373; Johnson v. Howe et al., 2 Gil. 342; Cranz v. Krozer, 22 Ill. 74; Bruner v. Dyball, 42 Ill. 35.
The pleas of non cejoit and non detinet conceded the right of property to be in the plaintiff, appellee, and only put in issue its caption and detention. Von Namee v. Bradley, 69 Ill. 299.
Under the plea of judgment and levy upon execution, the burden of proof was upon the defendant. Wells on Replevin, Sec. 302.
I think the judgment of the Superior Court should be affirmed.