¶1The defendant having taken this property from the plaintiff, who held the same as an attaching officer, is liable in this action, unless he can justify the taking. The service of the writ of replevin furnishes no such justification, inasmuch as he took the property from the possession of the plaintiff without first procuring from the plaintiff in replevin a valid bond. Such being the case, in the service of the writ of replevin, the defendant became a trespasser.
¶22. The proceedings in the replevin suit constitute no bar to the present action. An actual return of the property, and payment of the damages for the taking which were recovered in the replevin suit, so far as applicable to the injury for which damages are now demanded, might have been given in evidence *427in mitigation of damages in the present action. But those damages have not been paid, and the property has not been returned, and a mere unsatisfied judgment against a third person, of the character stated, furnishes no defence to the plaintiff’s right to recover for the illegal taking by the defendant.
¶3Judgment for the plaintiff.