In an action against a Sheriff for a seizure and conversion of the plaintiff’s property, taken under process against a third person, a demand upon the defendant prior to the bringing of the suit is not necessary to a recovery. The Sheriff having misapplied his process, and whether by mistake or design will make no difference, stands in the position of every other trespasser, and is liable to an action the instant the trespass is committed. The circumstance that the property.was in the possession of the execution debtor at the date of the seizure amounts to nothing except upon proof of fraud or commixture. The rule of the common law is correctly stated in Ledley v. Hays, 1 Cal. 160, and the correctness of that decision is impliedly recognized in Daumiel v. Gorham, 6 Cal. 44. The statement of facts in Taylor v. Seymour, 6 Cal. 512, is imperfect; but if that case is to be understood as laying down a different rule, then we prefer to follow Ledley v. Hays. (See also Codman v. Freeman, 3 Cush. 314; and Ackee v. Campbell, 23 Wend. 371.)
The judgment is reversed, and the Court below is directed to render judgment upon the findings in favor of the plaintiff.
Mr. Justice Rhodes expressed no opinion.