Ledley

By the Court,

This was an action of replevin for taking and detaining personal property of the plaintiff. The defendant, as sheriff of the county of San Francisco, seized upon a wagon and team as the property of one Elliott, under an execution against him, and whilst he had,them in his charge and custody. At the time of the seizure, Elliott informed the *161 defendant that the plaintiff owned the wagon and team and that he (Elliott) had no interest in them. The plaintiff was non-suited at the trial on the ground that a demand was necessary before suit brought, and this presents the only point for consideration.

The defense was based upon the ground that Elliott had transferred the wagon and team to the plaintiff in fraud of his creditors, and that, the defendant having levied upon the property while in the charge of Elliott, a demand should have been made before bringing suit. On the question of fraud conflicting evidence was given, which was proper to have been submitted to the jury to pass upon, and wo must, therefore, in determining this question of nonsuit, assume that the property •was owned by the plaintiff, and that Elliott was, as the plaintiff claims him to have been, a…