¶1This was an action of replevin, the first count in the declaration being for taking, and the second count for detaining, the property in controversy. Upon the trial in the court below, there was no evidence whatever to show a taking of the property as alleged in the first count, or a detention as alleged in the second count. The evidence was directed to the question of the ownership of the property, and if it should be conceded that the plaintiff below established her title, she was, nevertheless, bound to demand the possession of the property before she commenced suit. Ingalls v. Bulkley, 13 Ill. 315.
¶2The third instruction asked by the plaintiff in error and refused by the court should have been given, and the first instruction given for defendant in error should have been refused. The ownership of the property was not the only matter in dispute upon the trial of the cause. We are at a loss to determine what question of fraud arose upon the trial in the court below, to which the second instruction,' given on behalf of the defendant in error, could be applied. *91But, if there was such question, it was not correct to say that the pleadings must disclose it. The rule which requires fraud to be specially pleaded does not apply to the action of replevin. The instruction was calculated to mislead thy jury and should not have been given.
¶3By the fifth instruction for the plaintiff below, the jury were plainly told that certain evidence was not sufficient to establish a disputed fact, and this was followed by a declaration that the evidence introduced by the plaintiff below, upon the same point, was uncontradicted. It is generally known among members of the legal profession at this day, that the jury are the judges of the weight and sufficiency of testimony, and that the court must allow them to determine the facts in all cases. ISTevertheless, we will direct attention to the twenty-eighth (28) section of our practice act, by which courts are confined to the law of the case when instructing juries, and to one authority upon this point. Bond et al. v. The People, 39 Ill. 26.
¶4The defendant below desired to call one of his sureties upon the replevin bond as a witness in the cause, and moved the court for leave to file a new bond with a view to relieve the surety of incompetency because of his liability on the bond. This motion was not supported by affidavit, and therefore the court was not advised as to the materiality of the testimony of the surety, and error cannot be assigned upon the denial of the motion. We do not think it necessary to examine the testimony upon the trial in the court below and the objections thereto, as the judgment must be reversed for error in giving and refusing instructions.
¶5The judgment of the probate court is reversed, with costs, and the ease is remanded for a new trial.
¶6Reversed.