Hefner

This action was instituted by the plaintiff as assignee of the estate of the Wah Sang Yen Company, insolvent debtors, to recover possession of six tons of dried fruit, or the value thereof.

At the trial, no evidence was introduced on either side, and it was stipulated that the only question to be determined by the court was whether the taking of the property, as alleged in the complaint, and as explained and justified in defendant’s answer, was wrongful or not

*474 The facts stated in the pleadings are, in substance, as follows: “ In September, 1895, the Wah Sang Yen Company was a partnership, doing business in Butte county, and the defendant was then, and at all the times mentioned, the duly appointed, qualified, and acting constable of Honeut township, in that county. On September 16th, one Burgan commenced an action against the said company in the justice’s court of said township, in which a writ of attachment was regularly taken out and placed in the bauds of defendant for service; and under and by virtue of this writ the defendant duly levied upon, attached, and took into his possession the said six tons of dried fruit. On the same day another action was commenced by one…