Loosemore

This appeal is from the judgment and from the order denying plaintiff’s motion for a new trial. He sued defendant as sheriff of the county of Kern, who, under a writ of attachment, had levied upon and taken possession of certain personal property. Plaintiff offered to prove that the property was in his possession at the time of the sheriff’s levy and that his possession was based upon a chattel mortgage for a bona fide debt due to him from one Wygal, who had made default in the matter of the payment of the debt. After seizure by the sheriff plaintiff had given him an undertaking and thus had regained possession of the property. The judgment was in favor of the sheriff for the return of the property or its value, found to be the sum of three thousand dollars.

It was shown by respondent, and it is not controverted, that the chattel mortgage was never recorded and that it was not accompanied by the affidavits of the parties thereto as required by law. One C. B. Alexander commenced his action against Wygal to recover the sum of $1,450, for hay sold by him to Wygal within two years next preceding the commencement of the action, which commencement was on the thirteenth day of October,…