JOHN WATKINS, Plaintiff in Error vs. HERMAN L. PAGE, Defendant in Error, 2 Wis. 92

By the Court, "Whiton, C. J. At the trial of this cause in the Circuit Court, the judge decided that the áction could not be maintained, for the reason that the defendant, Page, had taken the property by virtue of a writ of replevin iff favor of third persons. It is contended that this decision is wrong, and should be reversed, as the right to maintain the action against the officer is given by our Revised Statutes, (Rev. Stat., chap. 119, sec. 1,. 2.) But we are of opinion that the sections of our statute referred to do confer the power to bring the action.

Those sections of the statute, taken together, we think give the light to maintain replevin only in cases where other appropriate actions can be brought. The inquiry then is, 'whether trespass or trover can be maintained against an officer for taking property by virtue of a writ of replevin. The general doctrine, that an officer is protected in his acts, performed in obedience to the command of a valid process, placed in his hands to be executed, is too well settled to be doubted.

In this case, the writ of replevin commanded the officer to take the property in dispute and deliver it to the plaintiff upon his giving the bond required by the statute. We see no reason why the officer should be made liable to an action for doing that which his duty required of him. No reason was stated at the argument why this case should constitute an exception to the general rule above referred to, and we are unable to see any. In the case of Shipman vs. Clark et al., 4 Denio's R. 446, Bronson, Ch. J., refers to this doctrine with approbation, and. refers to Hallett vs.

Byrt, Carthew, 380, an authority which is not within our reach. But without authority to show that this point has been determined by express adjudication, we should be content to rest our decision upon the general doctrine, that an officer is protected in all his acts performed in obedience to a valid writ. It also appears that the judge instructed the jury that the appraisal of the property as returned by the officer who executed the writ, was testimony to be considered by them in ascertaining the value of the property, although it did not appear that the appraisers had been sworn as required by the statute.

We think the judge erred in giving this instruction, The statute (Rev.

Stat., chap. 119, sec. 8,) provides that the plaintiff in the action, or some one in his behalf, shall execute a bond to the sheriff, or other officer, to whom the writ is directed, with the addition of his name of office, &c, in a .penalty at least double the value of the property specified in the writ, “ which value shall be ascertained by the oath of one or more disinterested witnesses to be sworn and examined by the sheriff.” ‘It was contended by the counsel for the plaintiff in error, that this appraisal of the property is made merely for the purpose of informing the sheriff in what sum to take the bond, and is no part of his return to the writ, and consequently not testimony.

Without deciding whether an appraisal of the property made according to the statute, would be testimony _or not, we are confident that when the return shows on its face that the statute has not been complied with, it cannot be testimony. The general doctrine undoubtedly is, that the return of an officer to a writ, is not only evidence, but conclusive evidence of the facts it contains, for all the purposes of the suit; but the officer cannot, by stating facts in his return which are not properly included in it, make the return, as to these facts, testimony.

In this case, the officer did in fact return the value of ' the property, and if the return had shown that the appraisers were sworn, the question would have been presented, whether the value of the property as fixed by the appraisers was a fact which it was his duty to state in his return to the writ. But however this may be, his return, in order to be evidence in any case, - mast show a compliance with, and not a violation of ^ x r TJje judgment of the Circuit Court is reversed.