Campbell vs. Case.
county, turned over to him by one J. D. Flick, another deputy sheriff of the same county. The said J. D. Flick, deputy sheriff, undertook to levy the attachment, but did not comply with the statute requisites in making such levy. (Laws, 1867-8, 54, § 185, and laws, 1862, 77, § 195.) Therefore, the said Flick was a trespasser when he took the possession of the oxen, and his successor, the defendant, was in no better condition. Summary process, attachments and the like must be executed strictly according to the provisions of the law authorizing them, else the officer executing them becomes a trespasser ab initio and of course the owner can maintain replevin against him, as well. (6 Wheaton, 119; Drake on Attachments, § 194; 28 N. Y., 659; 4 Mmn., 242; 1 Nevada, 27 and 82, etc.; 35 Ills"., 417.) No demand is necessary where the defendant comes wrongfully into the possession of the property. (4 Nevada, 494; 20 Wis., 462; 3 Nevada, 557; 46 Ills., 320.) In this case the record shows, conclusively, that there was a demand and refusal, even if it is held necessary. The decision of the court upon this question of fact is conclusive, as the record does not show, that all the evidence is before this court. One yoke of said oxen was exempt by statute. See laws, 1865-6, page—. And there being evidence to show that the oxen in controversy was all the oxen plaintiff had when the attachment was sought to be levied, it was the duty of the officer to set off, to the plaintiff, then defendant, one yoke, although this is an immaterial question, inasmuch as the officer acquired no title or right to the possession of any of the property seized, in consequence of having failed to make the seizure as the law directed. The issuing or granting of a warrant of attachment is a judicial act, and not ministerial. It having been made in this case by the clerk, instead of by the judge or court, is absolutely void, and the officer could not justify under it. (6 Minn, 183; Drake on Attachments, § 88; Nash's PL, 407 to 409.)
Kidder, J.— This action was tried by the court, the parties having waived a trial by jury. The case shows, that the
