#### Tyner *v.*Gafin.

A third person claimed property in goods, levied on by virtue of an attachment, and, on a trial of the right of property, obtained a verdict. The creditor appealed, and the Circuit Court, on the claimant’s motion, dismissed rhe suit on the ground that the attachment had irregularly issued. *Held,*that the irregularity complained of was no ground for dismissing the suit.

ERROR to the *Hancock*Circuit Court.

M’Kinney, J.

*Tyner*sued out a writ of domestic attachment against *William*Brown, and the officer to whom the writ was *371directed attached certain property of *Brown,*to which the defendant in error, *Gapin,*asserted a claim. A trial of the right to the property claimed was had, and a judgment on the verdict of the jury, in favour of the claimant, rendered. An appeal was taken to the Circuit Court; the cause, without the intervention of a jury, submitted to the Court; and judgment rendered in favour of the claimant.

A bill of exceptions shows that *Gapin*moved the Court to dismiss the case, alleging that the original proceeding and papers in the attachment, in which *Lewis Tyner*was plaintiff and *William Brown*defendant, were illegal and void; all the original papers in the attachment having been sent up with the appeal; that this motion was sustained by the Court, and judgment rendered that the attached property be returned to *Gapin,*on the ground that the bond of the plaintiff in attachment was not filed until after the writ had issued; that *Tyner,*the defendant below, then moved the Court to allow him to prove by the justice of the peace, by whom the writ was issued, that the bond was filed in his office before the writ issued, which was refused by the Court. To the opinion of the Court sustaining the motion to dismiss the case, and to its refusal to admit the testimony offered, *Tyner*excepted.

Several points are made; the material one, however, and that to which our attention will be directed, is as to the dismissal of the case.

On a trial of the right of property, whether it be held by a *ji.fa.*or a writ of attachment, the only question to be decided is, to whom — to the claimant or the execution-defendant— does the property in question belong? The claimant, if he recover, must prove that the property is his. No proof by him of tortious conduct on the part of the officer, or of irregular or erroneous process sued out by the plaintiff, can dispense with this duty. It is imperative. The assertion of a claim to the property, and the adoption of this statutory and summary mode of determining his right, is an admission of the legality of the levy, precluding him from attacking the process. It is a choice of several remedies for his protection afforded by the law, and his election does not clothe him with the power thus collaterally, of defeating a judicial proceeding to which he is not a party. If the writ of attachment was wrongfully sued out, the bond of the plaintiff affords ample protection to the defendant *372in that suit; or he may, at a proper time, move to quash the proceedings if there he a departure from the statute; for no doctrine appears to be better settled than that which requires from a party adopting this remedy, a strict and literal conformity to the provisions of the statute. The construction is strict, and no intendment in favour of the plaintiff admitted.

*W. W. Wick,*for the plaintiff.

*C. Fletcher,*for the defendant.

This view of the case renders it unnecessary to advert to the refusal of the Court to admit the testimony offered by the defendant below.

We are therefore of opinion that the Circuit Court, in dismissing the case, erred, and that the judgment must be reversed.

*Per Curiam.*

The judgment is reversed with costs. Cause remanded, &c.