Killey v. Scannell

Terry, C. J., delivered the opinion of the Court—Baldwin, J., concurring. The judgment is affirmed for the reasons given in the written opinion of the Judge of the Fourth District filed in the record. The following is the opinion of the District Judge referred to in the foregoing opinion of this Court: “ There is no allegation or proof on the part of the plaintiff that he either gave notice of his claim to, or demanded the property in question of, the defendant before the commencement of his action. Wilson being in the possession at the time of the levy, and having apparently the control of the property, was prima fade the owner. It was the official duty of the defendant as Sheriff to levy on all property found in the possession of Wilson as ostensible owner, and this property under the proof was prima fade liable to be attached. If it was in fact the property of the plaintiff or any other person, the real owner might have made his claim to it, and tried the question of title in a summary way, as authorized by our statute or by an action of this kind. X “ Defendant having seized the property by virtue of his office and process, while in the possession of the party defendant mentioned in the writ, was entitled to notice and demand from plaintiff before he can be0held liable to an action for the possession or value. Neither is it necessary, as was contended in the argument, that in order to make this defense defendant should specially plead want of notice and demand. After the defendant proved the possession was in Wilson at [76] the time of the seizure, and justified under the process against him, the onus was on plaintiff to show affirmatively a proper demand and notice to enable him to recover. “ Report set aside and new trial ordered. “Hager, Judge.”