majority">Campbell J.

To a declaration in replevin defendant pleaded the general issue in bar, and gave notice under it that he • had levied upon the property as United States Marshal, under an attachment from the United States Circuit Court in favor of John B. Goodsell against Emil Dahlheimer and Adolph Bieber, and held the property under that writ at the commencement of this suit. The jury find specially that he did so levy on it, but that it belonged to plaintiff. The Circuit Court found thereupon in favor of defendant, who waived a return, and judgment was thereupon rendered in his favor for the full value of the goods, viz: six hundred dollars.

It seems to have been supposed on the argument that this case falls within the decisions of the United States Supreme Court, which hold that property held under the process of one court can not be seized by the process of another. But upon the pleadings and facts as .found, no such point is properly before us. It may be questionable whether such a defence is not one which should be pleaded to the jurisdiction, and not in bar. But, admitting it properly raised upon a plea in bar, the defendant has not made it out, and has waived it if made.

It can not be pretended that in levying upon the property of a third person, he was not a trespasser, and his writ could not protect him from liability personally for his wrong doing. As a wrong-doer it was his duty to restore the property to its owner upon demand, and the only effect of any of the decisions of the United States Supreme Court is to prevent any clashing of process, and not in any way to legalize his trespass. The remedy may be obstructed, but he gets no sanction for his trespass. The case of Bucle v. Colbath. 3 Wall. 334, is decisive on this point. And if he chose to relinquish his levy, his relinquishment would discharge it. Property once discharged from levy by the voluntary act of the officer can not be reclaimed by him.

*404It does not appear from the special verdict that when the sheriff replevied the property defendant informed him of his levy or set up any right to hold the property under it. The sheriff could not be bound to know any such fact without being informed, and defendant had the power legally to release the illegal levy. In the absence of any proof or finding to the contrary we can not assume that the sheriff undertook to seize property claimed under legal process.

But had this appeared, the defendant having waived a return of the property and elected to take a judgment for damages, the judgment rendered in the court below is in contravention of the finding. It was probably rendered under a mistake as to the present condition of the statutes on that subject. There was formerly some ambiguity as to the judgment to which a defendant was entitled, who waived a return, and who set up only a special property in the goods replevied. Section 29 of the Replevin Act contemplated a judgment only to the extent of the special interest, while section 34, if construed by itself, would permit him to have judgment for the entire value. But by act No. 195 of the statutes of 1865, the ambiguity is removed, and the judgment under section 34 is made expressly “ subject to the provisions of section 29 of this Chapter” — L. 1865, p. 325.

The verdict shows that defendant had no right whatever in the property, inasmuch as his levy was tortious. And had it been valid, no showing was made, and no finding was had concerning the amount claimed to be due in the attachment proceedings. He could have no recovery in any case beyond the pecuniary extent of his special interest, and that not being shown he is entitled to nothing.

The judgment below should be reversed and judgment rendered in this court in favor of the plaintiff for nominal damages and the costs of both courts.

Cooley Ch. J. and Graves J. concurred.Christiancy J. did not sit.

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