¶1delivered the opinion of the Court:
¶2This was an action of trover, brought by Daniel Wheeler against Whitaker, to recover the value of certain cattle and other personal property levied on by Whitaker, as sheriff, under a writ of attachment issued against one Charles Wheeler. Prior to the trial of this case, there had been a trial of the right of property, and a verdict found for the plaintiff. The plaintiff offered the record of that suit in evidence in this case, and it was admitted against the objection of the defendant. Its admission was error, since the sheriff was not a party to that proceeding, in any sense that would make it evidence against him, and as it would be apt to have some weight upon the minds of the jury, the error is one for which we must reverse the judgment.
¶3It is also assigned for error, that certain depositions taken under a commission addressed to one William Roffenburg, as special commissioner, and executed by one William Rifenburg, were admitted in evidence. The cross-interrogatories were duly propounded and answered, and no objection is taken, except to the variance in the spelling of the name. We think the court might well presume that the commission was executed by the proper person.
¶4Objections were also taken to the admission in evidence of the declarations of Charles Wheeler, as to the ownership of the cattle. But they were made while he was in apparent possession, before the levy, as explanatory of his possession, and in disparagment of any claim in himself. They were, therefore, admissible. The fact that Daniel, while in possession, claimed the cattle as his own, was also admissible.
¶5It also appears that the sheriff sold the property as perishable property, under the 23d section of the attachment law, and it is claimed that the plaintiff can only recover the proceeds of such sale. It does not appear that there was a compliance with the requirements of the statute in making that sale; but even if there had been, the sale would have been immaterial. The statute does not contemplate, if the goods of one person are wrongfully levied on under an execution against another, that the rightful owner is to be permitted to recover only such sum in damages as his property may have brought under a forced sale. Such a sale would very seriously impair that protection which the law is intended to furnish to rights of property.
¶6But for the error above named, the judgment must be reversed and the cause remanded.
¶7Judgment reversed.