
    James Sutton vs. John Beach.
    Chittenden,
    
      January, 1829.
    One cannot justify the seizing and impounding a staliion by virtue of the 10th section ■ of die “actrelating to pounds, estrays and lost g-oods,” without showing that the horse was afterwards, legally sold.
    The notice of the sale of such horse, required by said-act to begiven by the person impounding the horse, must mention the place where thesame is tobe sold — otherwise the sale will not be legal, and the impounder will-be a trespasser ab initio.
    
    This was an action of Trespass, for seizing and carrying away a horse. Plea — not guilty, and notice of special matter to be given in evidence, At the trial in the County Court, at March Term, 1828, the plaintiff proved the taking and carrying away, by the defendant, of the horse in question, as alleged in the declaration. The defendant, in his cjefence, offered to prove that at the time of said taking, die horse was a stone horse or stallion, two years old spm’e time in-the Spring in which he was sold; of which the plaintiff was owner ahd keeper — That the plaintiff suffered said horse to run at large, out of the enclosed ground of the plaintiff, and that the defendant having found the said horse running at large and doing damage to him, impounded him, ahd that twenty-four hours after impounding, he gave notice thereof to the plaintiff — That the defendant, within three days after said notice, caused the damages to be appraised according to the statute — That the plaintiff, within three days after, was notified of the appraisal, and that he neglected and refused for three days or more, after both of said notices, to pay to the defendant the amount of said damages, together with the expenses, &c. The defendant contended that these facts would constitute a good de-fence to the action. But the Court ruled otherwise, and were of opinion that the defendant must also shew a legal sale of the horse. Whereupon the defendant offered further to prove that he had advertised the horse for sale, for four days, at the school house, in the town of Williston, and, at the time set for sale, sold said horse at the barn-yard of the defendant. But it appearing that the place of sale was not mentioned in the advertisement, the evidence was rejected by the Court.
    The defendant then offered to prove, that the plaintiff neglecting to pay said damages and costs, the defendant advertised the horse for sale, at least four days, at the same place where it was afterwards sold, but at a'time previous to the time set in the advertisement; which advertisement was torn down by some person unknown to the defendant. Whereupon the defendant omitted to sell on the day set, but posted up a second advertisement. The defendant also offered to prove that the plaintiff knew of the time and place of sale, and employed an agent to attend the salej who did attend and bid off the horse for the plaintiff. To the admission of all which evidence the plaintiff objected, and the same was excluded by the ■ Court, and a verdict' was returned for the plaintiff.
    The defendant filed exceptions to the foregoing opinions of the Court; and the cause now came before this Court on a motion for a new trial, founded on said exceptions.
    
      The counsel for the plaintiff contended, That the advertisement was void, because it did not mention the place of sale. It was put up at the school house, and the property was sold at the defendant’s barnyard. — Statute, p. 453, s. 10, and p. 450, s. 1.
    
      defect could not be cured by Sutton’s having notice of the place of sale. The advertisement is intended to give no-bee to all, that any one may, if he chooses, come in and bid.
    And Beach, neglecting to pursue the steps pointed out by ilie statute, was a trespasser ah initio. “ If a sheriff have not re-* turned a writ, which ought to have been returned, he becomes & trespasser front the beginning, as to every act done under it.” — - 2 Swift’s System, 96. — 5 Dane, 566. Whenever an authority is given by law, to a person, and he abuses it, he is a trespasser ah initio. Purrington vs. Loring, 7 Mass. 388. — Sackrider vs. McDonald, 10 Johns. Rep. 253. — Van Brant et al vs. Schenck, 13 Johns. 414. — Merrit vs. O’Neil, 477. Johns. 477,
    
      The Counsel for the Defendant contended, 1. That thetaic-ing, impounding, appraisal of the damages, and notice to the owner, so far divested the owner of the possession of the property taken, that he cannot maintain trespass ; and that it was not nej cessary to shew any sale. Smith vs. Miller, 1 T. R. 480.
    2; A mere nonfeasance, or irregularity in the proceedings, will not make the defendant a trespasser ah initio. Gardner vs. Campbell, 15 Johns. Rep. 401. — 1 Chitty’s Pl. 172. — 1 Swift’s Dig. 528. Where the original taking is lawful, the subsequent act must be such as to injure the plaintiff, in order to make the defendant a trespasser ah initio. Hammond’s N. P. 53-4, 57-8, 58-9.
    3. If there was any defect in the advertisement, it was cured Or waived by the plaintiff’s attendance at the sale, and bidding by his agent.
    4. The second advertisement, connected with the fact that the horse was sold at the place mentioned in the first, in the presence of, and to, the owner, was a continuance of the first advertisement, and the whole was but one advertising.
    5. The proceedings were all regular and legal. The omission to state the place of sale in the advertisement was not material. The impounder, after the appraisal of damages, notice and advertisement, is authorised to sell. By these proceedings the Owner is divested of all interest in the property, and the direction in the statute to advertise, being general, not in terms requiring the place of sale to be mentioned, he cannot complain, unless his interests are affected by the omission. The first object of the act Is to satisfy the damages and the expense of the impounder, and next to secure the surplus to the town. In neither case has the defendant any interest. So far then as the owner is concerned, there is no reason for requiring the place of sale to be advertised, and hence this requisition is omitted in the statute. The statute directing the mode of selling property on execution, requires the place of sale to be particularly advertised, because the owner has an interest in the sale. St at. 209. Also in the sale of real estate at auction by execution. Statute 343 — Sec. 9.
    6. The defendant contends that he must necessarily sell where the hoVse was impounded — That he had no authority to sell elsewhere, and, of course, the place of sale must have been known by the plaintiff to be at the pound.
   The opinion of the Court was delivered by

Paddock, J.

Two questions are raised by this case; first, whether the advertisement wherein was set forth the time the horse was to be sold, ommitting the place, was legal; secondly, whether the sale under such notice, would make the defendant a trespasser ah initio.

The only object in advertising property for sale, is to give notice to those who may wish to purchase, of the time, and place where, the same will be offered ; and without specifying both, neither the spirit nor intent of the statute is complied with. The statute is to have a reasonable construction ; and if one part might be dispensed with to suit one case, another part might be to favor some other, and so on, until the whole statute would be frittered away. The time might be better omitted than the place where a sale is to be made ; for if the time were omitted, one intending to purchase could employ another to give him notice when the article was set up : but iheplace being omitted, he could employ no means to be informed.

I recollect a case before the Supreme Court in Essex County, in 1822, Clark vs. Balch, in which this same question was .decided. The case was this : Clark, being a private in a militia company, had neglected to appear on a day appointed for training,and was fined, and an execution issued, and was put into the hands of Balch, the orderly sergeant of the company, for collection, who levied the same on a horse belonging to the delinquent; adversised the same for sale, and sold after the usual time of notice.

The delinquent then brought his action DÍ trespass against Balch, and on the trial, it appeared, that after the advertisement had been posted up four days, it was discovered that the place of sale had not been mentioned j and it was then supplied by the officer ; and the sale was made in ten days after, and was adjudged by a full court to be irregular; and the plaintiff recovered.

It is urged that the plaintiff has no reason to complain, as he1 knewthe time and place of sale, and actually sent an agent and bid the property off. That can make no difference here, whatever' it might do on the minds of the jury, in assessing damages. The' question is, whether the property was legally disposed of or not s if legally, the plaintiff is divested of all right and interest in it: but-if not, he has his claim against the defendant who seized it: and whether that claim can be prosecuted in an action of trespass, os' not, is our next enquiry.

It is urged by the defendant, that trespass will not lie in the present case ; that the first taking being lawful, a subsequent irregularity in the disposition of the property, will not make the seizor a trespasser ah initio. The case cited from the 15 Johnson, Gardner vs. Campbell, does not tend to support this position. That was an action of replevin for certain goods taken on execution by an officer, who afterwards, having received the money of the execution debtor, to the full amount of the execution,, and having given a receipt for the same, proceeded and sold the goods. The case was submitted to the Court upon a demurrer to these facts. Judge Spencer, in delivering the opinion of the Court, said, “ that the pleas admit the original caption to be lawful, and, therefore, replevin did not lie.” He virtually admitted, that where the original taking was lawful, and afterwards the officer committed a mere nonfeasance, such as a refusal to deliver an article distrained, trespass would not lie : but did expressly recognize the case of Hopkins vs. Hopkins, reported in 10. Johns. 269, as being law, which goes fully to establish the contrary of the doctrine contended for here by the defendant.

In the Six Carpenters case, 8 Co. 290, it was ruled, “ that when entry, authority or licence is given to one by the law, and he abuses the same, he shall be a trespasser ab initio: but where entry, authority or licence is given by the party, and he abuses it, there he shall be punished for the abuse, but he shall not be said to be a tresspasser ah initio.” And the same principle was established in the case of Reynolds vs. Champerton, Cro. Charles, 228. All the Court were of opinion, that to prevent the plaintiff from fishing in the defendant’s fishery, he might legally distrain the plaintiff’s nets and oars damage feasant, to stop his further fishing; but in cutting them, made himself a trespasser ah initio,

And where a lawful taking is not followed by some positive act, by which the interest of the owner, or the property itself, is partially or wholly destroyed; but by an irregularity in the disposition of the same; as for instance, not removing the property with reasonable dispatch — the distrainer'makes himself a trespasser ab initio. Griffin vs. Scott, 2. Ld. Ray. 1424. To satisfy ourselves of which, we hardly need any other evidence than the Statute of llth Geo. II. which provides “ that where any distress has been made for rent, and any. irregularity, orunlaw- “ ful act shall be afterwards done by the party distraining, the dis-u tress itself shall not therefor be deemed unlawful, nor the par- ty making it, be deemed a trespasser ab initio; but the party ag~ grieved by such unlawful act or irregularity, shall and may re-il cover full satisfaction for the special damage he shall have sus- “ tained thereby, and no more, in an action of trespass or on the “ case, at the election of the plaintiff.” And in Winterbourne vs. Morgan and others, 11 East, 395, though the distress was for rent, yetthe defendants, remaining in possession for fifteen days, during the last four of which they were removing the goods which were afterwards sold under the distress, the law giving but five days for that purpose, were adjudged trespassers ab initio.

It is evident from the wording of the above act of 11th Geo. II, and more especially its preamble, that it was a remedial and not an explanatory act; for the latter recites the hardship upon landlords, against whom damages, as trespassers ab initio, had been recovered to the amount of the rent due for which the distress had been made, on account of some irregularity or tortious act in the disposition of the distress taken. To relieve them from such conclusions of the law, the 19 th section enacts that where any distress has been made &.c.” before recited.

And Sir William Blachstone, in his Commentaries (3 voL p, 15) admits, that before the passage of this Statute “ if any one irregularity was committed, it vacated the whole, and made the distrainors trespassers ab initio.”

And the same principle has been recognized by the Sup. Court in Massachusetts, in the cases of Purrington vs. Loring, 7. Ms. R. 388, and Winslow vs. Loring, 7. Ms. 392, In the former-case, the property being distrained on a warrant, was advertised but twenty four hours before sale; whereas, the law required it to have been four days. In the latter, an article having been sold on execution, the purchaser refused to pay for it, and the officer-consented to set it up again ; and it was bid oil at a less price than. ^ was at first. And fbr those irregularities, the officer in both cases was adjudged a trespasser ah initio.

Thus stood the law anciently, and it has not been departed from in later days; and if this Court is governed either by precedent or principle, they must decide in favor of this form of action, in the present case.

The defendant further contends, that the law appoints the sale to be made in this case, at the place where the horse was impounded ; and hence it is not necessary to notice the place in the advertisement. Such does not seem to be the letter of the Statute ; and the policy of the law requires every publick sale to be made in a place more publick than the stable of a private individual.

The court are of opinion, that the evidence offered by the defendant was properly excluded; therefore, the judgment of the County Court must be affirmed.  