Cope, J. concurring.

Trespass against the Sheriff for seizing chattels claimed by the plaintiff. The defendant justified under a writ of attachment, and also under an execution issuing upon a judgment had in the attachment suit. On the trial, the Court ruled out the attachment proceedings and the judgment and execution, on the ground that the defendant had not proved all of the debt upon which the attachment issued. But the Court manifestly erred in this ruling. If no debt had been proved, as the defendant introduced the judgment and execution, and offered to *69 show a levy by him and a sale of the property under the execution, this was enough, if not to justify the first seizure under the attachment, at least to diminish the damages, by showing the property was appropriated by law to the proper purpose—the payment of the debt by Conn, if really it was his property, or subject, as his, to the process ; and if it were fraudulently conveyed by Conn to the plaintiff, of course, it would be so subject. But if any proof aliunde of indebtedness of Conn were required, when papers in the attachment cases were regular on their face, the judgment afterward obtained in the attachment suit was prina facie sufficient to admit the attachment papers in proof.

We see nothing in the various grounds upon which the exclusion of all this testimony was urged to justify it. The answer, it is true, does not distinctly aver that the writs of attachment and execution were returned executed by the officer; but if this were necessary to justify the officer, the omission of the averment, though it might have been ground of demurrer, was no ground for the rejection of all this proof. The variance of a few dollars between the sums in the complaint and in the judgment was immaterial, and the plaintiff was in no position to dispute the regularity of the proceedings in attachment, as they were not void on their face ; nor is the fact that the answer does not show that the property was seized in Yuba county, any reason for excluding all this proof.

The defendant should have been permitted to show his attachment and proceedings, and the judgment, execution and levy, and then that the sale by plaintiff to Conn was fraudulent. This last fact could be established, by showing that the possession of the property was not changed after the alleged sale, or by circumstances showing that it was a mere color. No proof of indebtedness was necessary after showing the attachment, affidavit and undertaking; and no irregularities—in justifying the sureties or the like—could be availed of by the plaintiff.

The whole question then became a question of a sale by Conn to the plaintiff, and of the bona fides of the sale ; and this issue can be determined on another trial by the application of rules and principles already established by this Court.

We do not consider it necessary to notice the various other points taken in this case. What we have said, is decisive of the case upon the main proposition involved, and sufficiently indicates our views of the course to be adopted in the next trial.

Judgment reversed and cause remanded for a new trial.