
    GRAFTON,
    MAY TERM, 1824.
    STEPHEN ORDWAY vs. ENOS FERRIN et a.
    Where a collector of taxes, having seized goods, as a distress for the non-payment of taxes kept thorn beyond the time prescribed by the statute, for the- sale ot ..goods so taken, it was held, that the coastable, by so keeping the goods, did not become a trespasser.
    Trespass, for taking and carrying away a heifer of the ■plaintiff, on the 18th March, 1823.
    The cause was submitted to the decision of the court, upon the following facts. Enos Ferrin was duly appointed and sworn a collector of taxes, for the town of Hebron, for the year 18.22, and had a warrant from the selectmen, in due form, to collect, among others, certain taxes legally assessed upon the plaintiff. Ferrin, having given the plaintiff fourteen days’ notice, of the sums assessed upon him, and the said Ordway having neglected to pay the same, on the 18th March, 1823, by virtue of the said warrant, took the heifer mentioned in the plaintiff’s writ ; and on Monday, the 24th day of the same March, advertised the same heifer, for sale on the 25th day of the same March, at two of the clock, in afternoon.
    On the same 25th of March, the plaintiff’ having commenced this action, caused the heifer to be attached by virtue of his writ, and taken from the possession of Ferrin, beforejthe hour appointed for the sale arrived.
    
      Walker, for the plaintiff.
    
      Quincy, for the defendant.
   By the Court.

Our statute provides, that, when goods are distrained for taxes, the collector shall keep the distress, the space of four days, and if the owner, do not pay the taxes and expenses within that time, the collector shall proceed within forty.eight hours, after the expiration of the four days, to sell, at public auction, the distress. In this case, the distress was taken on the 18th of March, and the collector must have kept it the space of four days sometime on the 22rl day of March, and the forty-eight hours, after the expiration of the four days, within which time, he was required by the statute to sell, must have expired on the 24th March ; and the question, which this case presents for our decision, is,, whether the collector became a trespasser ab initio, merely by his neglect to sell on the 24th March ; and we are of opinion that he did not. It is well settled, that mere non-feasance, cannot make a man a trespasser ab initio. 8 Coke 290, the six Carpenters' case, 15 John. 402.

Whether this action could have been maintained, if the collector had actually sold the distress after the 24th March, it is not necessary now to decide.

Judgment for the defendants,  