Campbell vs. Case.
Bartlett Tripp, for appellant.
Goods custodia legis cannot be replevied, nor can defendant in attachment try the validity of proceedings in another action. (Wait's Annotated Code, 411 d.; id., 371, f. i.; id., 373; id., 374, § 208; 7. Abb. Dig., 572; 1. Abb. Dig., 568; § 80; id., 129, § 2; 2 Bl. Com., 141, n. i.; Bacon's Abridgment, Titles "Replevin:" Allen on Sheriffs, 271-2 and 276; 3 U. S. Dig., 335, § 8; id.; 337, § 61; id., 338, § 78; id , 338, § 81; 3 Wait's Dig., 1632, § 9, g.; 2 Hill, on Torts, 244, n.; 2 Hill. on Torts, 231, and see note 22 Wis.,646; 7 Barb., 650; Simmon's Dig.. 717,§ 5; 21 Iowa, 535; Drake on Attach't, §251.) Neither yoke of said cattle were, by law, exempt from attachment; but if so exempt, plaintiff waived such right by his acts, and his neglect to claim it. (Drake on Attach't, § 195; 20 U. S. Digest, 910, § 78; 1 Wait's Dig., 724, § 136; id., 725, § 141; Howard 0. Tarr, 18N. H., 457; 2 HiH. on Torts, 240, note; id., 242, § 31, and cases there cited; Broom's Legal Maxims, 785; Wait's Annotated Code, 553, m. ; 34 N. Y., 253; 34 Me., 233; 22 Cal., 506-7.) There must have been a demand or refusal before a right of action accrued to this plaintiff, and such demand must have been alleged before it could be proven on the trial of the issues. (7 Maine, 502; 38 Cal., 507; 2 Hill, on Torts, 229, § 12; 1 Abb. Dig., 5g9, § 92.) This plaintiff waived all irregularities not raised in his motion, ^s defendant in attachment; or if the irregularity of the officer's proceeding in attachment, sought to be raised on the trial of replevin, was included in said motion to set aside, it is as adjudicated, and he is bound by order of the court therein, until reversed on appeal. (6 Abb. Dig., 387, §§26-27 ; 2 Wait's Dig., 1585, §§ 45-17; 1 Smith & Tiffiny's Prac, 423-4 and 431-2; Ibid, 437-8.) The replevin process had been set aside when judgment was rendered for plaintiff, so that if judgment could have been rendered at all for plaintiff, it could only have been for damages, and not for possession of the cattle. (2 U. S. Dig., 174, § 418; 1 Smith & Tiffany's Prac, 437-8; 8U. S. Dig., 182, § 176.) The officer's acts are presumed to be legal, and the levy valid, until the contrary be shown, and any act required by the
