
    John C. Wolcott vs. Graham A. Root.
    An officer who, after selling on an execution sufficient property to satisfy it, proceeds to sell other property of the judgment debtor, does not thereby become liable as a trespasser ab initia to one who held an unrecorded mortgage of a portion of the property which was rightfully sold.
    In an action against an officer for refusing to serve a writ and make an attachment thereon of property which was pointed out to him, and which was then held by him on another precept, and afterwards sold for more than sufficient to satisfy the same, the defendant cannot be allowed to prove as a bar to the action a settlement made after the action was commenced, and not set forth in the answer, by which the surplus left in his hands was paid over to other creditors of the debtor, with the plaintiff’s consent.
    Tort against the sheriff of Berkshire county for the misfeasance of John W. Howland, his deputy. The first count alleged that Howland, by virtue of some process committed to him as an officer, seized four cows of the plaintiff and converted them to his own use. The second count alleged that Howland refused to serve a writ in favor of the plaintiff against Calvin Mason, though his fees were tendered, and property to be attached was pointed out. The answer denied the title of the plaintiff to the cows mentioned in the first count; and denied the various allegations in the second count, and averred that, if true, the property pointed out had already been seized by Howland on other precepts, which it was no more than sufficient to satisfy.
    At the trial in the superior court, before Rockwell, J., it appeared that the plaintiff held a mortgage of the cows from Calvin Mason, dated June 9, 1856, and recorded March 8, 1858; and in February 1858 an execution against Mason was delivered to Howland for service, on which he seized the cows in question, as well as other property, and on the 6th of March 1858 he sold the cows and other property for twelve or fifteen dollars more than enough to satisfy the same, and still proceeded to sell a mow of hay for about $28, so that after satisfying the execution he had left in his hands a surplus of $41.70. The plaintiff contended that, by selling the hay under the circumstances stated, Howland became a trespasser ab initia, and was therefore liable to him for the value of the cows; but the judge ruled otherwise.
    The defendant was allowed to introduce evidence, under objection, of a settlement made in April 1858, by which How-land paid over to other creditors of Mason the surplus in his hands, with the plaintiff’s consent; for the purpose of showing that “ when the writ mentioned in the second count was offered to Howland, March 17th 1858, he had not in his hands the said $41.70.”
    The jrny returned a verdict for the defendant, and the plaintiff alleged exceptions.
    
      J C. Wolcott Sf M. Wilcox, for the plaintiff.
    
      H. L. Dawes Sf J. N. Dunham, for the defendant.
   Bigelow, C. J.

This is a novel attempt to extend the doctrine of trespass ab initia, which in our opinion is not sustained on principle or by authority. The officer was guilty of no wrongful or illegal act towards the plaintiff or his property, and committed no excess or violation of his authority in any matter which in the least degree trenched on the legal rights of the plaintiff. The property conveyed in mortgage to him was liable to seizure on execution against the mortgagor, because the mortgage had not been recorded according to law, and the officer in taking and selling it took no step which was not fully authorized in the due service of his process, so far as any right or title of the plaintiff in the property was thereby affected. Towards the plaintiff therefore he was not in any sense a trespasser. He did no act in relation to him or his rights in the property which the law can regard as an excess or abuse of authority. There is therefore no basis on which to rest the legal fiction by which an original wrongful intent in relation to the property of the plaintiff can be inferred from any subsequent act of the officer, and by reason of which the plaintiff can fix on him the responsibility of a trespasser ab initia. The adjudged eases go no farther than to hold that where a license or authority is given to any one by law, and he exceeds or abuses it, he can be held liable as a trespasser ab initia to him whose rights or property are in any way injured or affected by such abuse or excess. But no case can be found where a person against whose property and rights no excess or abuse has been committed can rely on a wrong or injury done to another, as evidence of an original unlawful intent towards him, and thus convert an officer exercising a lawful authority into a trespasser ab initia. Taking it for granted, without deciding the point, that in selling the hay, under the circumstances proved at the trial, the officer was guilty of such excess or abuse of his process as to make him a trespasser towards the judgment debtor, he did not thereby do any act which in any degree infringed on the rights of the plaintiff, or which tended to make him answerable to him in this action.

The evidence of the settlement with the plaintiff in April 1858 seems to have been admitted under some misapprehension as to dates. Inasmuch as it was made after the commencement of the action, it was under the answer competent only in mitigation of damages, and not in bar of the cause of action set out in the second count of the declaration. As the evidence was admitted generally, and may have had an effect on the minds of the jurors in finding their verdict, its admission furnishes a sufficient reason for granting a new trial on that count.

Verdict on second cownt set aside.  