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Majority
p. 20[No. 3,813.] JOHN W. JONES v. SPENCER K. SPEARS.
Headnote
Pboof of Facts Admitted in Answeb.—The plaintiff need not prove facts alleged in the complaint which are admitted in the answer.Pboof of Demand in Bepbevin.—If the complaint in replevin avers a demand made for the property, and the answer admits it, a demand need not be proved.
Appeal from the District Court, Thirteenth Judicial District, County of Merced.
The action was replevin for eight hundred head of sheep. The defendant had judgment, and the plaintiff appealed.
The other facts are stated in the opinion.
D. M. McKenney and J. K. Law, for Appellant.
D. W. Welty, B. D. Wiggington, B. N. Ward and Alexander Leering, for Respondent.
• 1. The verdict and judgment were in favor of the defendant, notwithstanding that the answer admitted that the
p. 21
defendant had in his possession some forty-seven head of the sheep of the plaintiff sued for in this action.
2. A demand made by the plaintiff upon the defendant for the delivery of the sheep sued for, is admitted in the answer, and it results that the first instruction asked by defendant and given by the Court, to the effect that the plaintiff could not recover in the action without proving that he had made such demand, was erroneous.
Judgment and order denying new trial reversed, and cause remanded. Remittitur forthwith.