
    Abraham Purrington versus Bezaleel Loring.
    If an officer, having lawfully seized goods by virtue of a warrant of distress, wantonly removes them to a great distance before the sale, whereby the owner is injured, an action of the case may be maintained against him; but he is not, for that cause, a trespasser ah initia.
    
    Where an officer returned, on a warrant of distress, that he advertised the goods distrained twenty-four hours before the sale, he was not permitted to give parole testimony, in an action of trespass against him for taking the goods, that he in fact advertised them forty-eight hours before the sale.
    Trespass for taking and carrying away a calf, and a chaise and harness, the property of the plaintiff.
    The case came before the Court upon an agreed statement of facts; from which it appears that the plaintiff’s property in the chattels taken, and the taking and carrying of them away by the defendant, are admitted ; that the defendant, being a deputy sheriff, by virtue of two several warrants of distress, issued by a justice of the peace for this county against the plaintiff, for neglect of duty as a training soldier in the militia, took the said chattels in Falmouth, where the plaintiff then lived; that he put his own horse to the chaise, and, taking another person with him, rode out of the town in which he had seized them, making a considerable circuit; that he afterwards sold the chattels in North Yarmouth, and re- [ * 389 ] turned upon the warrants of * distress, that, having kept the chattels seized four days, and the sums ordered by the warrants to be levied of the plaintiff not having been paid, nor the chattels otherwise redeemed, he sold the same at public auction to the highest bidder, “ having given twenty-four hours’ previous notice of the time and place of sale, according to law.”
    Upon these facts, it was agreed, that, if the Court should be of opinion that the defendant could be permitted to introduce parole evidence to contradict his returns upon the warrants, and to prove that he advertised the chattels at North Yarmouth forty-eight hours before the sale ; and if the Court should also be of opinion that all the proceedings of the defendant were correct, and amount to a legal justification — the plaintiff should become nonsuit; and if otherwise, the defendant should be defaulted, and the plaintiff’s damages be assessed by the Court.
    The cause was argued at the last May term in this county, by Longfellow for the plaintiff, and E. Whitman for the defendant.
    
      Longfellow contended that,
    although there was no special pro vision of law, requiring that chattels taken in execution should be sold in the same town where the party from whom they are taken resides, yet that such may fairly be presumed the intention of the law, from the mischiefs to be apprehended from a different practice. If not limited to the vicinity, the officer may carry them to a distant part of the county ; by which the expense would be enhanced, and where the owner may not know of the sale, and may be deprived of his legal right to redeem them ; and where the value of the chattels is likely to be less known. This last observation has peculiar strength when horses and cattle are seized, as very frequently happens.
    But the objection most relied on is the want of legal notice of the sale. The law expressly prescribes forty-eight hours’ notice, and the defendant gave but twenty-four. Having thus neglected to fulfil his duty, he became a trespasser ah initia.
    
    [ * 390 ] * The return of an officer is taken for true in every case, except only where an action is brought against him for the falsity of the return itself. He is not at liberty to contra-diet it himself. And this rule is founded in great reason. Purchasers at such a sale may be deceived, and find themselves without a title to the articles they were induced to buy. The debtor himself, having from the return a sufficient cause of action, may be deprived of it, and incur fruitless expense, if the officer may at any time contradict or control by parole testimony the return he lias made, and which has become matter of record.
    The case finds that the defendant unnecessarily used the chaise as his own, when it was in his custody as an officer; and by thus abusing his trust, he becomes amenable as a trespasser.
    
      Whitman was informed by the Court,
    that he need not notice the selling the distress in another town than that where it was taken.
    As to the using of the chaise, he said, no unnecessary or wanton use appears. It is not easy to suggest a more proper method which the officer could have adopted, than putting his own horse to the chaise, to remove it to a place of safety, and where the sale could be conveniently made.
    Trespass lies not against an officer but for his misfeazance. if the defendant’s returns are by mistake different from the truth of fact, and the plaintiff has in fact received no injury, it is absurd that he should avail himself of that mistake to obtain damages, when the whole truth disclosed would show that he had no claim to damages. The returns themselves can never have operated to his injury. They are to be considered as the confession of the officer, and may be explained or contradicted by him, if he have evidence to support his explanation or contradiction, without violating principles of public policy, or injuring any one.
    The defendant need not contradict his return, to justify himself. If he advertised the chattels forty-eight hours, *it would still be true that he advertised them twenty- [ * 391 ] four hours. He says he advertised them according to law, and if so, it must have been forty-eight hours, and thus the explanation he offers, is not substantially different from the return itself.
   The action stood continued for advisement; and now the opinion of the Court was delivered by

Parsons, C. J.

The action is trespass vi et armis, for taking and carrying away a calf, and a riding chair and harness ; and it comes before us on a case stated by the parties. The property in the plaintiff, and the taking and carrying away by the defendant, are agreed.

The justification by the defendant is, that, as a deputy sheriff, he, on warrants of distress against the plaintiff, duly issued and delivered to him to execute, took, carried away, and sold, to satisfy those war rants, the chattels mentioned in the declaration. The warrants of distress, and the authority of the defendant originally to take and carry them away, are admitted; but the plaintiff insists that the defendant, by removing the goods seized, out of the town in which the plaintiff lived, and in which they were seized, became a trespasser ab initia, by abusing the authority of the law.

That the goods were removed to, and advertised and sold in an adjoining town, is agreed in the case; but merely from that fact we do not consider that the officer has become a trespasser ab initia. The expense of keeping or of advertising may be not increased by the removal, and the sale may be under more favorable circumstances for the owner. If the officer had wantonly removed the goods to a great distance, thereby increasing the charges of keeping and advertising, or injuring the sale, a special action of the case might be maintained against him ; but he would not be a trespasser ab initia, if the goods were legally seized and carried away.

Another objection to the defendant’s justification is, that it appears from his return upon the warrants of distress, [ * 392 J * on which the chattels were seized, that he sold them after having advertised the time and place of sale twenty-four hours.

As by the law the defendant ought to have made the advertisement four days before the sale, this objection is admitted to be fatal, unless the defendant can be admitted to prove by parole, notwithstanding his return endorsed on the warrants, that he in fact did advertise the time and place of sale four days before the sale.

But it is our opinion, that parole evidence for this purpose is not admissible. The officer’s return must be in writing; and when made upon his precept, and regularly returned, it must be presumed to be true, until the falsity of it be proved. He cannot therefore justify by a parole return, when it is his duty to return his doings in w riting. And it may be further observed that the owner of the goods taken has no regular means of knowing whether the officer has done his duty, other than by inspecting his return; and if the return may be explained, or another return proved by parole, this means may be useless. And it may be added, that if parole evidence was admissible, there would be great danger of fraud and perjury. But the officer, by doing his duty, in returning truly his proceedings endorsed on his precept, is liable to no inconvenience, if he has acted legally ; and if he has not, he ought not to be protected by a false return, whether in writing or by parole.

It is therefore our opinion, that the plaintiff has maintained his action, and that the defendant, pursuant to the terms of the agree ment, be called. Defendant defaulted,  