
    James P. Carter vs. Benjamin A. Clark and another.
    Whether, under the statute with regard to the levy of executions, (Rev. Stat., tit. 1, § 175,) goods attached in one society may lawfully be sold on execution in another: Quere.
    
    If they may not; yet the officer attaching them may lawfully remove them from the .society where attached, and to any proper place, for safe keeping.
    And especially may an indifferent person, deputed for the service of an attachment, use his own judgment as to the place where he shall keep the property attached, as his authority is limited to no particular precinct.
    A constable of the town of Bridgeport sold there on execution goods which he had previously attached in another town as an indifferent person, specially deputed, and which he had removed, while held under the attachment, to Bridgeport. The attachment was in all respects regular, and [ *513 J was completed *by a return. Held, that the levy and sale were entirely independent of the attachment, and, if illegal, did not render the original taking of the goods a trespass ab initio.
    
    And it seems that the officer would be protected in such levy and sale, by the precept of the court, to which alone he had a right to look, and which directed him to levy on and sell the goods found within hi6 precinct, and which he could levy on and sell no where else.
    A purchaser of the goods at such a sale, even if he-acquired no title by the purchase, would be liable only in an action of trover after demand and refusal, and could not be made responsible for the levy, or for the original attachment and removal of the goods.
    Where spirituous liquors have been sold and delivered in another state, with a knowledge on the part of the vendor that the purchaser intended to bring them into this state and sell them here in violation of the statute for the suppression of intemperance, although, by that statute, no action could be maintained in the courts of this state for the price, yet if there has been an actual payment for them, by a bill of sale of goods within this state, such bill of sale is not invalidated by the provisions of the act.
    Where a mortgage of goods, void because made to secure the price of liquors sold contrary to law, was foreclosed by a court having jurisdiction, and a decree passed ordering a public sale of the goods by an officer, to an amount, sufficient to pay the mortgage debt, and an officer sold the goods in pursuance of the order, and paid over the amount of the debt to the mortgagee, it was held that the. officer was not liable for the amount of the sale, to a party who had acquired, previous to the foreclosure, a valid title to the goods from the mortgagor.
    Trespass de bonis asporlatis. The defendants pleaded in justification that the acts charged were lawfully done in the levy of an attachment upon the property by the defendant Clark, specially deputed as an indifferent person therefor, and in the sale of the same upon a foreclosure of a mortgage and upon a levy of an execution bv him as a constable, and that the acts of the other defendant., George Wheeler, were lawfully done in assisting him in the attachment and removal of the property. They also averred that the property was taken by them under a mortgage of the same, by request of the mortgagee.
    Upon the trial to the jury, it was admitted that the goods in controversy were formerly the property of Thompson and Jackson, keepers of a hotel in the village of Birmingham, in New Haven county, where the goods were at the time of the alleged taking thereof. Both of the parties claimed to have ^derived a title to the goods from them. .The plain- [ *514 J tiff, to show title in himself, offered in evidence a bill of sale of the goods, dated March 2d, 1857, from Thompson & Jackson to himself and one Delevan, (who on the 12th of March assigned to him all his interest,) accompanied with evidence that on the same day he took possession of the goods, and appointed one Shelton his agent, and that Shelton retained possession thereof until the 21st day of April, 1857, when they were taken by the defendants. It was admitted by the plaintiff that a large part of the consideration of the bill of sale was for spirituous liquors sold to Thompson & Jackson, in the city of New York, in the fall of 1856, and it was claimed by the defendants that they were sold with knowledge that Thompson & Jackson purchased them to bring into this state to sell contrary to law, and with the intent to enable them to violate the law ; and the defendants requested the court to charge the jury that, if they should so find, the bill of sale was void ; but the court did not so charge the jury, but instructed them that if they should find that the plaintiff sold the liuqors to Thompson & Jackson, in New York, with a knowledge of their intention to bring them into this state and sell them here in violation of the “ act for the suppression of intemperance,” then, although no action could be maintained for them, yet if there had been an actual payment for them, either in money or goods, which payment was valid in other respects, it w’ould not be rendered invalid by reason of the provisions of the act.
    The defendants offered in evidence a mortgage of a large portion of the goods in controversy, from Thompson & Jackson to Francis E. Wheeler, dated July 23d, 1856, to secure the sum of $527.23, and also a writ of attachment, dated April 20th, 1857, in favor of said Wheeler against Thompson & Jackson, returnable to the superior court for New Haven county, upon which the defendant Clark was deputed as an indifferent person to make service thereof. They also offered evidence to prove, and the plaintiff did not deny that they had proved, that Thompson & Jackson requested Wheeler, the mortgagee, to [ *515 ] take possession of the property embraced *in his mortgage, and that under the mortgage, and as the agents of. the mortgagee, and at his request, they, the defendants, proceeded to the hotel, and there the mortgagors delivered to them, as- such agents, the possession of the goods embraced in the mortgage ; and that the defendant Clark, assisted by the defendant Wheeler, attached the goods in question, including the mortgaged goods, as the property of Thompson & Jackson, by virtue of the writ of attachment; and that the goods were thereupon, with the assent. of Thompson & Jackson, removed to Bridgeport, and that Shelton made np claim of title to or possession of any of the property in behalf of the plaintiff, but disclaimed all knowledge of the ownership of the goods, and made no objection to the removal of them to Bridgeport, but assisted therein.
    The defendants also offered to prove, and it was not claimed by the plaintiff that they had not proved, that upon the petition of Wheeler, the mortgagee, duly brought and served upon the mortgagors, the superior court, at its session in New Haven county, within which the mortgagors then resided, at its May term, 1857, found that the mortgagors were indebted to the mortgagee upon the mortgage debt in the sum of $542.39, and thereupon ordered that, upon the failure of the mortgagors to pay that sum, and the costs taxed, to the mortgagee, on or before the 18th day of May, 1857, the articles mortgaged, or so much of them as might be necessary to pay the debt, interest, and cost, and necessary expenses, be sold at public sale in the city of Bridgeport, by. the defendant Clark; and that upon nonpayment by the mortgagors, the defendant Clark, pursuant to the order, sold there at public sale, fairly conducted, so much of the mortgaged goods as was necessary to pay said sums, and made due return thereof to the clerk of the court; and that afterwards, on the 19th day of June, 1857, bv virtue of a lawful execution directed to him, issued out of said court, upon a judgment recovered by said F. E. Wheeler upon the writ of attachment befox’e mentioned, for the sum of $1,002 debt, and $81.75 cost, the defendant Clark, who was then a lawful constable of the town of Bridgeport, levied upon the goods embraced in the mortgage, and not sold under the order, and the other goods attached as before stated, and sold the same at the sign-post in Bridgeport, in conformity with the provisions of the statute, and applied the proceeds of the sale, amounting to $101.98, in part satisfaction of the judgment, and made due return of the execution.
    It was not claimed that the defendant Wheeler had anything to do with the sale of the goods under the order, or with the levy of the execution or the sale by virtue thereof, but it was admitted that at the sale he was a purchaser of a considerable quantity of the goods.
    The plaintiff offered evidence to px-ove tjxat the considex’ation of the mortgage, and the debt for which the judgment was rendered, were in part for spirituous liquors, sold by the mortgagee to the mortgagors in this state and in violation of law. To the admission of all this testimony the defendants objected, but the court admitted it; and the defendants also introduced evidence, and claimed that they had px-oved, that the consideration of the mortgage was in no part for spirituous liquors. The court thereupon, at the request of the plaintiff, chai’ged the jury that if the mortgage was made, either in whole or in part, for spirituous liquors sold in this state in violation of law, then the mortgage was null and void, and no rights were acquired under it; otherwise, and in tbe absence of any other objection, that the mortgage was valid.
    The defendants offex-ed evidence to show, and claimed they had proved, that, after the making of the bill of sale, Thompson & Jackson still remained in possession of the hotel and of the goods therein, and were in possession at the time of the alleged taking by the defendants, and that the possession of Shelton was merely colorable and fraudulent as to the creditor’s of Thompson & Jackson; and thereupon, at the request of the plaintiff, the court charged the jury that, to render a sale of goods valid as against an attaching creditor, an actual and substantial, and not a mere formal and colorable change of possession must attend the sale; but that this rule does not applv to a stranger, or a creditor who takes the goods in .a manner not justified by his process; that in this case, if the mortgage was valid, the defendants had a right to lake and re- [ *517 ] move such of the goods as were-embraced in it and were turned out to the defendants by the mortgagors,; but that, in relation to such of the- goods as were not included in the mortgage, if the title to them passed to the plaintiff by the bill of sale, the defendants were' not justified in-taking and removing them to Bridgeport under their writ of attachment, and selling the same there under the execution, even if no such visible change of possession attended the sale.
    The defendant Wheeler thereupon requested the court to charge the jury that, if they should find that the possession of the goods, at the time of the alleged taking,-was.so in Thompson & Jackson, as claimed by the defendants, the same might lawfully be attached by the creditors of Thompson & Jackson ; and that, if they should also find that he had nothing to do with the levy of the execution on the goods, or the sale of. them on the execution, -he was not liable for that portion of the goods attached and sold under the execution ; but the court did not so charge the jury, but instructed them that he was equally liable with the defendant Clark, so far as they should find that he aided and assisted Clark in the removal of the goods, • not included in the mortgage, to Bridgeport; and .selling them as above.
    The jury rendered a verdict for the plaintiff -for the sum of $625, and the defendants moved for a new-trial.
    
      Dutton and' Treat, in support of the motion.
    1. The court erred in not charging the jury that the bill of sale from Thompson & Jackson to the plaintiff was void, under the-statute for the suppression of. intemperance, because the consideration for which.it was given was liquors sold in the state of New York, with the knowledge on the part of the plaintiff-, that they were to be brought into this state and sold in violation of law. The' plaintiff had no rights growing, out of that sale which he could enforce in this' state. Act of 1854, sec. 27. Reynolds v. Geary, 26 Conn., 179. The sale, as [ *518 ] admitted by *the plaintiff, was in - violation of-law. The bill of Sale was therefore-without any legal con-, sideration. Our courts will not aid a-party to. derive'.any. ben-, efit from an act by which he intended to assist, and did in fact assist, another person in a direct violation of, law.
    2. The court erred in admitting the evidence offered by the plaintiff, to show that the mortgage to Francis E; Wheeler was given to secure a debt that accrued from the sale of liquors within this state. The defendants had not merely oifered in evidence this mortgage, but had also given in evidence a petition to the superior court for New Haven county, within which the mortgagors lived, and on whom service was duly made, for a foreclosure of the mortgage, and a decree of foreclosure upon the petition, with an order of sale directed to the defendant Clark, and his return of the sale thereon. The superior court having found that the mortgage debt was justly due from Thompson & Jackson to the moi’tgagee, the evidence received directly contradicted the record. Further, the order of sale being valid on its face, protected the officer, and his assistant, the other defendant Wheeler, so that they could not be affected by the fact, if it was one, that the original consideration of the mortgage was not valid. It was the duty of the officer to sell the property on the order of sale, and he had no right of discretion in the matter. Watson v. Watson, 9 Conn., 140.
    3. The execution issued by the superior court, in the suit on which the property was attached, was valid on its face and issued by competent authority, and it in like manner protected the officer. The motion moreover states that Wheeler, the defendant. had nothing to do with the selling of the goods in Bridgeport.
    4. The charge with regard to the removal of the goods to Bridgeport, and their sale there upon the execution, was erroneous. The principal part of the goods was delivered to the defendants in- Birmingham, as agents of the mortgagee, who had a right to remove them where he pleased, and all of them were lawfully attached there, and after the attachment were *removed to Bridgeport, with the assent [ *519 ] not only of Thompson & Jackson, the defendants, but also with the assent and aid of Shelton, who it is claimed had the custody of them in behalf of the plaintiff. But if there was no assent to the removal, the defendants yet acted lawfully in removing them. The statute with regard to the levy of executions, (Rev. Stat. tit. 1, § 175,) in speaking of property taken, refers only to the taking of the property on the execution, and not to attachments. The defendants had a right to remove the property where they pleased for safe keeping, so long as they acted fairly. Even if it could not be sold in Bridgeport on the execution, yet its removal- there would not be unlawful. And when the officer received the execution which directed him to levy on property found within his precincts, he was bound to levy on this property, and being a constable of Bridgeport he could only lew and sell in Bridgeport. It does not appear that the course taken was pot the best for all parties; and it is not pretended that the defendants acted fraudulently in the matter.
    5. If the sale in Bridgeport was unlawful, and the officer can be made liable in this suit -for the sale, the defendant Wheeler ought not to have been Held jointly liable, since it is admitted that he had nothing to do with the selling of the goods. His purchase of a portion of them at the sale had no connection with the unlawful selling, and clearly can not make him a trespasser ; and if he acquired no title to the goods, he would be liable for them only in trover, after demand and refusal.
    
      Beardsley and Wooster, contra.
    1. The 27th section of the statute for the suppression of intemperance is in derogation of common right, abrogates contracts, and in its consequences is highly penal, and should be construed strictly. By this section the aid of our courts is withheld from the party, “ in an action for spirituous or intoxicating liquors,” who sells'the same in another state with intent to enable another to violate the act. The actual payment for [ *520 ] liquors sold in another state is neither within *the letter or spirit of the act, and this court ought not so to construe this penal statute as to include such payment.
    2. There was no error in admitting the evidence of the consideration of the mortgage under which the defendants justified. No court had passed upon the mortgage at the time the goods were taken under it, and if the mortgage was void by reason of the consideration, certainly the evidence was proper to show it. Besides, we were not parties to the bill of foreclosure, and are not affected by the decree. The charge of. the court upon this point was in exact conformity with the statute. See sec. 27.
    3. None but a bona-fide purchaser, or a creditor who appropriates the goods of his debtor according to law, is in a position to attack the title of a plaintiff on the ground of actual or constructive fraud. Any other person is a trespasser, a mere wrong doer, and has not.been innocently misled to purchase' the. property or appropriate the same in satisfaction of a debt. Owen v. Dixon, 17 Conn., 492.
    4. The taking of these goods in one county by writ of attachment, and carrying them into another, and out of “ the society where taken,” and there selling them on execution issued on the judgment obtained in the suit on which they were attached, was an irregular proceeding, and the process furnishes no justification to the officer. The goods were taken by the defendants in Birmingham, and should have been “ posted on the sign post in the society where taken, and there sold.” Rev. Stat., tit. 1, § 175. Prince v. Thomas, 11 Conn., 472. The statute, in using the term “ where taken,” refers to the place where the goods first go into the custody of the law. The officer who takes by attachment and holds until he sells on execution, takes but once. Tomlinson v. Collins, 20 Conn., 364. The posting and selling of the goods by Clark, the officer in Bridgeport, was a trespass, and being a trespass it rendered the original taking a trespass ab initio. Waterbury v. Lockwood, 4 Day, 257. Ross v. Philbrick, 39 Maine, 29. Prince v. Thomas, supra. Pierce v. Benjamin, 14 Pick., 356.
    5. The original taking being a trespass ab initio, the ^defendant Wheeler, so far as he assisted in the [ *521 3 removal and sale is equally liable with Clark, the acting officer. Wheeler can justify only through Clark, the principal, and where the officer can not justify, surely his assistant can not. The motion shows that Wheeler was a participant in the illegal sale in Bridgeport by purchasing a “ considerable quantity of the goods” and converting the same. This alone would make him a trespasser in the original taking. Deal v. Bogue, 20 Penn., 228. And, by a purchase of the goods from a person having no right to dispose of them, he would be liable on the count in trover, without- previous demand. Bristol v. Burt, 7 Johns., 254. Shotwell v. Few, id., 302. 1 Swift Dig., 537.
   Ellsworth, J.

We are satisfied that there must.be a new trial of this case. Not that we perceive any error in the instructions of the court to the jury with regard to the plaintiff’s title to the goods which he acquired under his bill of sale; for although the consideration, or debt for spirituous liquors, would not be legal and sufficient here, it was good in New York, where the debt was contracted and the goods delivered. Nor that we perceive any error in the instructions given with regard to the consideration and character of the mortgage of Francis E. Wheeler, under which some of the goods were taken and carried away. So far we think the charge is open to no exception. But as to the goods which were taken and held under the attachment, and not under the mortgage, and which were after-wards sold on the execution, we are constrained' to think the charge not entirely correct. The error lies in giving to the sale in Bridgeport an undue effect in avoiding the attachment in Birmingham, and making that act of the officer a trespass ab initio.

We are not able to see why the sale on the execution, or the previous - transportation of the goods from Birmingham to’ Bridgeport for safe keeping, which has been complained of on the trial, should be held to have any such effect on the attachment. But such must be the effect, or else the plainly *522 ] *tiff can not sustain his action for a trespass, for he^ makes that attachment the distinct ground of his action ; and although he has, in his declaration, a count for trover under our statute, yet he goes for one and the same cause of action, and whatever he proves as taking place after the attachment and removal at Birmingham, is of no importance, except as imparting a character to the original taking as the ground of his action.

The principal question argued by counsel, as to the proper place for selling goods first taken” on attachment, and after-wards on execution in another and different society, is one attended with considerable difficulty, and we think there may be some diversity of opinion upon it. We do not feel called upon to decide at this time what the law is on this subject, for, upon the facts here proved and admitted, the point is not important to the result, and we are strongly impressed with the belief that it will not become important on another trial, should another take place.

That part of the charge which is responsive to the request of Wheeler, one of the defendants, that if the goods were lawfully attached, and the attachment, as an attachment, fully perfected and consummated, he could not be made a trespasser ab initio, merely because he happened to buy some of them at auction when they were sold on the execution, does not, we think, contain sound law. But we shall be better able to comprehend the bearing of this request, and the character of the response made to it by the court, upon looking at the case as it stood, admitted and proved, before the jury.

We will premise what we have to say on the doctrine of the charge, by remarking, that if the plaintiff was correct in his claim as to the facts, to wit, that his bill of sale was good and the sale accompanied by an open, substantial possession, the defendants were liable, of course, for whatever they took and carried away which was not embraced in the mortgage, and even for that too, if the mortgage was not a valid one; for, in such case, the property taken was not the property of Thompson & Jackson, the debtors in the attach- [ *523 ] *ment, but of Carter, the plaintiff. We must then see how the law will be if the possession was not changed, as the defendants insist it was not, and therefore the goods liable to be attached by a creditor of Thompson & Jackson.

The plaintiff insists that, even if' he did not take possession as the law requires, the hill of sale was good as to Thompson & Jackson, and every body else who did not attach the goods, and proceed with his process to- a perfect consummation of the attachment, without neglect, omission or default in the eye of the law, for otherwise such interference would be the act of a stranger, who cannot insist upon a possession in the vendee as a requisite of a valid sale. Be'it so, that this plaintiff may scan this proceeding and. take advantage of any mistake or neglect in the officer that Thompson & Jackson could have taken advantage of had they wished to do so, and had not waived their right by acquiescence or neglect, (which is going quite far enough certainly ;) the question will then be, what is the official default apparent on the record ? When, where, by what act or omission to act, after the attachment, has the officer who made the attachment forfeited the protection of the law, and made- himself and his assistant trespassers for that first act ? And let it be remembered that this first taking is the only trespass complained of by the plaintiff.

If any defaults are proved to have occurred afterwards, they are not to be treated as distinct grounds of action, for there-can be but one cause of action under the statute, and they can be viewed only in their relation to the first taking, and as going to prove that the attachment, as a process of the law, was not served and perfected as the iaw requires.

First, then, it is said the property attached was carried out of the society within which it was attached, to the city of Bridgeport, and this it is claimed the law does not permit. We do not assent to this proposition as a general one. An officer may always remove the property which he has attached, and for the safe keeping of which he is responsible, to a proper place of custody ; and especially may this be done by a' person specially deputed by a magistrate for *the service of [ *524 ] an attachment, as Clark was. His official character had no local limits, and in the exercise of his best judgment he doubtless supposed that the goods could be more conveniently, safely, and economically kept in Bridgeport than in Birmingham, and, if so, he certainly had a right to take them there to be kept. Besides, it :is not certain that the defendants in the attachment did not- assent to the removal of the goods to Bridgeport, and even request it, which of course would be a complete answer to the-objection. The defendants claimed that it was so, and introduced proof to substantiate the claim, and they were entitled to the benefit of this circumstance, if it was made out to the* satisfaction of the jury.

Again, it is said the goods were sold in Bridgeport, whereas, since they were attached in Birmingham, they could be sold no where else. This objection, I conceive, grows out of an entire misapprehension of the case, although the question might arise and become important under other circumstances. Clark, as we have already said, attached the goods under a special deputation from a justice of the peace. Of course he was an officer for no further purpose, nor clothed with power for further duty, than to serve and consummate his attachment, which could be done by returning the writ duly indorsed and by carefully preserving the goods until they were wanted on the execution. This was done, and here ended his attachment of the goods. Nothing remained to be done, by the neglect of which the officer or his assistant could be converted into trespassers ab initio. Nor does it make any difference that the execution afterwards was sent to Clark, and he was directed, as a constable, to levy upon the goods in his precinct, where the goods were stored, and where alone, as constable of Bridgeport, he had power to levy, advertise and sell. These acts are wholly distinct from the attachment of the goods, and whether defensible or not, can not for a moment be allowed to prejudice Wheeler, the- assistant in the attachment. We may, perhaps, go further, and say that Clark, - so far as he needs a justification for obeying the exe- [ *525 ] cution which directed *him to levy on and sell the goods found within his precinct, (and he could only levy on and sell them within his precinct,) had no right, and certainly was not obliged, to speculate as to what might have been proper upon a view of all the facts. The execution was alone his commission. The case of Watson v. Watson, 9 Conn., 140, is a much stronger one than this; and so is that of Gray v. Davis, 27 Conn., 447.

We do not decide, as we have already intimated, the question so elaborately argued at the bar, whether goods must be levied upon and sold in the society in which they were at first attached. This is the general practice no doubt; perhaps the statute requires it; but the word “ taken,” which is the expression that gives rise to the question, (Rev. Stat., tit. 1, § 175,) is not necessarily confined in its application to the taking on the attachment. Where there is no fraud or unfairness to affect the question, it is one on which something can be said in favor of either view. But thus far we do mean to decide, that this attachment was perfected and ended, as to -the attaching officer, by the acts already mentioned, and that a sale in Bridgeport on the execution could not make Clark a trespasser ab initio.

If this be true as to the officer, much more is it so as to his. assistant, who only aided him in attaching the goods and removing them to Bridgeport. It would be manifestly unjust to hold him responsible for proceedings on the execution, and still more, to make him a trespasser ab initio, because he happened to purchase some of the goods when they were sold on the execution. He had as good a right to purchase them as any body else; and even were it true that he acquired no title to the articles he purchased, he would only be liable for them in trover, after demand and refusal, as the purchase and conversion, having no connection with the levy, or with the original attáchment and removal of the goods, would not be acts of trespass in any event whatever.

There seems to me, so far as I can judge from the record, to have been a further error, in the rule of damages adopted on the trial, a point which did not receive from the counsel or the court the attention it demanded.

*The superior court at New Haven, having juris- [ *526 ] diction, ordered Clark to make sale, at Bridgeport, of so much of the property embraced in the mortgage as would cancel the mortgage debt and costs. He did so, and paid and applied accordingly $542.89. The rest of the mortgaged goods, together with what was levied on under the execution, were sold at the post for $101.98, and money applied on the execution. Now it is difficult for me to see how, on any theory, Clark can be held liable in damages in the present suit, for the goods he sold on the mortgage. He only sold the specific property which he was required by the decree to sell. It can make no difference that the mortgage was originally invalid. The court had found that there was $542.39 due upon it, and had ordered him to sell the property and pay over that amount to the mortgagee. And now, when he has done it, he can not, here nor elsewhere, be compelled to pay the money a second time to any one. All the goods which he took he sold fairly, under the mortgage or the execution, and they all brought only $644.37; $542.39 of this money he applied on the mortgage and the rest on the execution ; and yet the verdict is for $625, which I can not but think wholly wrong. The officer has been compelled to pay here the very money which the superior court ordered him to pay over, and which he did pay over on the mortgage ; which is contrary to the law as laid down in • the cases of Watson v. Watson, and Gray v. Davis, already cited. And what makes it worse, Wheeler, the other defendant, is made liable in the verdict for the same sum. On another trial, should one be had, this difficulty may be cleared up ; but as the case stands, it strikes me as being a very substantial one, and quite serious in its consequences.

We advise a new trial.

In this opinion the other judges concurred.

New trial advised.  