Campbell vs. Case.
statute will be presumed to have been done in absence of such statement in the officer's return. Less strictness held in personalty than realty—still less in attachment than in transfer of title under execution. (Eastman's Dig., 307; 2 Hill, on Torts, 206, n.; 2 Abb. Dig,, 615, §§200, 199, 203-6-7-8; 2 Abb. big,, 601, §§ 3 and 4; Drake on Attach't, § 209; 11 Cal., 238; 8Me.,408; 11 Barb., 520; 31 Me., 546-50; 14 Mass., 404-7-8.) Any irregularity of the officer in making his attachment, is never matter of abatement, and can be taken advantage of by this plaintiff, by motion only. It cannot be raised in the trial on the merits, as presented by the pleadings in the case. (2 Wait's Dig., 1571, § 4344; 38 Cal., 372; Wait's Annotated Code, 340 d., 413 d; 6 Abb. Dig., 64, § 40; Gould's Pleadings, 268, § 135; 1 Chitty's Pleadings, 450, n. 3; 11 Mass., 271; 38 Me., 388; 8 U. S. Dig., 177, § 56.) If the plaintiff has any cause of action against defendant, it is trespass, not replevin. (2 Hill on Torts, 1978; 3 U. S. Dig, 541, § 278; 3 U. S. Dig., S39.) Plaintiff in replevin cannot have attachment discharged, as to a part of his property, and retained as to remainder. (Wait's An. Code, 417.) If it can be made to appear that the officer did not make any appraisement, or return an inventory, in accordance with the statute of 1862, such omission is at most a mere irregularity, and does not affect the validity of the attachment. The statute of 1862 is directory, only, and a failure to comply therewith would not affect the subsequent transfer of title under execution much less the levy of attachment in which seizure and possession are the only purpose of the process. (Hunt v. Loucks, 38 Cal., 372; Blood v. Light, id., 649; Tuttle v. Gates, 24 Me., 395,(11 Shep.;)4 U. S. Dig, 778, §§899. 90-1-2, 964-9 and 50; Drake on Attach't, §208; 1 Abb. Dig., 317, § 149 ; Wait's An. Code, 547; Purchaser's Title, notes e. f.; Cites, 5 Barb., 565, 568-9; Wait's An. Code, 357, § 184, a,; 8 Me., 408; 20 U. S. Dig., 910, § 78; 9 U. S. Dig., 219, § 62.)
Moody & Handy, for appellee.
The defendant, who is the appellant in this court, received the oxen in controversy, as a. deputy sheriff of Yankton
