On a motion for a rehearing, defendant’s counsel argued, i/rvter alia, that in a suit under the lien law the return of the attaching officer has' no tendency to establish the identity of the property attached with that upon which the labor was per*184formed, but such identity must be prored aliunde-, that the record of a judgment in such a case must show that the logs upon which the labor was expended are the same which in the writ are commanded to be attached, and which were attached and returned by the officer (Thompson v. Gilmore, 50 Me., 428-432; Bicknell v. Trickey, 34 id., 273); that the lien judgment herein question merely declares that the amount of damages and costs there named “is a lien on the timber set forth in the complaint herei/nf and the execution directs the sheriff to levy particularly upon “ lumber attached in this action,” while there was no proof in the case that the lumber described in the execution and the timber, described in the judgment were identical; that the execution should have followed the judgment in describing the property; and that the whole record in the lien judgment, therefore, does not show any valid judgment, or any violation of duty by the defendant in neglecting to levy said execution. Counsel further contended that, “in all cases where an- officer has reasonable ground for doubt whether he can lawfully execute process placed in his hands against the person or property in question, he may demand indemnity from the plaintiff in such process, and refuse to execute it without” (Grace v. Mitchell, 31 Wis., 533); and that the sheriff’s right to such indemnity in this case was not affected by the provision in sec. 7, ch. 186, Laws of 1861 (the only log-lien law applicable to Chippewa county), to the effect that the plaintiff in such an action “ shall not be required to give the undertaking or security for costs or damages ” required by sec. 5, ch. 130, R. S. (Tay. Stats., 1470, § 7), because the section last named has no reference to a bond of indemnity required by the sheriff for his own protection, but to the undertaking which might be required by the defendant in such an action.
Plaintiff’s counsel, in reply, contended, inter alia, that a judgment declaring a lien “upon the property described in the complaint ” is in exact accordance with the statute, and *185tbe execution also gave the sheriff the proper directions (sec. 13, ch. 186, Laws of 1861); and that there was no need of any indemnity being given to the sheriff, because a writ commanding him to seize specific property was itself a full protection. Griffith v. Smith, 22 Wis., 646; Battis v. Hamlin, id., 669; Union Lumbering Co. v. Tronson, 36 id., 126.
Ebb Cubiam:. "We probably erred in holding, as we did in the former opinion, that the sheriff could not properly demand indemnity of the plaintiff without an order requiring the plaintiff to give it. The section of the statute cited to that position (Laws of 1861, ch. 186, sec. 7), we now think does.not sustain it. The provision relates to indemnity to the defendant, not to the sheriff; and we are inclined to think that sec. 58, ch. 130, E. S.,is applicable to the case. But this view will not change the result, for there seems to be nothing in the record which shows that the sheriff had reasonable ground to doubt whether he could lawfully obey the mandate of the execution. Besides, no sufficient demand for indemnity was made. The remarks in the opinion in respect to the insufficiency of the demand for expenses of' holding the attached property, are equally applicable to this branch of the case.
On all other points we are satisfied with the views expressed in the opinion.
Motion denied.