1. The property being in the lawful possession of Kirk and Wilson, it was the duty of the defendant as Sheriff, with process against them, to levy on and seize it, and he was not a trespasser for so doing. Camp v. Chamberlin, 5 Denio, 199; 8 Bar. and Cress. 132; Williams v. Lownds, 1 Hall Superior Court R. 595; Bond v. Ward, 7 Mass. 123.
2. No action, therefore, can be maintained against the defendant without a demand by the true owner. 6 Cal. R. 43; Ib. 512.
3. On the finding of facts by the referee, the defendant is entitled to judgment final for the return of the property or its value, as found by the referee. No new trial is necessary.
4. The order setting aside the referee's report should be affirmed, and the Court below directed to enter judgment for a return of the property; and in case return cannot be had, that defendant recover six hundred and fifty dollars, with costs.
JUDGES: Terry, C. J., delivered the opinion of the Court. Baldwin, J., concurring.
OPINION
TERRY, Judge
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 facie 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 facie 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.
" 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 be held 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 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."