Elsom

This is an action against a constable and his bondsmen to recover the value of certain personal property taken by said officer under and by virtue of a writ of attachment. The verdict of the jury was for the defendants, and this is an appeal from the judgment entered thereon and from an order denying plaintiff’s motion for a new trial.

The facts are as follows: During the latter part of November, 1906, E. R. "Whitman was in Watsonville, attending for the plaintiff to the purchase and shipment of produce which had theretofore been contracted for by W. M.- Elsom, the plaintiff. This produce, on being loaded into ears engaged by plaintiff, left one of them only partially filled. On November 26th Whitman, on his own account, obtained from one J. F. Kane, one hundred and thirty sacks of potatoes, and loaded them into the partially filled ear, and billed the whole ear to plaintiff. The ear left Watsonville, arriving at Santa Cruz the next day, at which time plaintiff claimed to be the owner of the potatoes through purchase from Whitman. On November 28th Kane, having been refused payment by Whitman for the potatoes, commenced an action against him in the justice’s court, and caused a…