
    John Boynton versus Cephas Willard.
    An action of trespass de bonis asportatis is rightly brought in the name of the person who was the owner of the goods at the time of the trespass, although he may have sold them before the action was commenced.
    If the vendee brings such action in the name of the vendor without authority, the defendant should make the objection at-the first term.
    A judgment in such action prosecuted for the benefit of the vendee, would be a bar to an action of trover subsequently brought by the vendee in his own name.
    
      It seems, that a return of an attachment of personal property does not conclusively prove a taking, so as to subject the officer to an action of trespass.
    The plaintiff in an action of trespass, having alleged in two counts respectively two acts of trespass, to which the defendant pleaded a justification, new assigns a trespass, which he avers to be different from those justified, and the defendant pleads the general issue to the new assignment. Held, that the plaintiff was bound to prove a different trespass from those justified ; and that he could not sustain the action by proving the trespass mentioned in one of the original counts, on the ground that the plea in justification was insufficient ; for if it was insufficient, he should have traversed it or demurred, *
    Trespass. The declaration contained two counts ; the first alleged, that the defendant, on the 23d of October, took and carried away two tons of hay of the plaintiff; the second, that on the 25th of December the defendant took and carried away two other tons of hay of the plaintiff.
    The defendant pleads in justification, as to the hay mentioned in each count, and as to the supposed trespasses therein alleged to have been committed, that one Clarke, having recovered a judgment against the plaintiff, sued out a writ of execut'on> which, on the 25th of December, was delivered to the defendant, then a deputy-sheriff, and that by virtue of the execution, the defendant took and seized the hay on the same day, and subsequently sold it and applied the proceeds in part-satisfaction of the execution ; which, he avers, are the supposed trespasses mentioned in the introductory part of the plea, and whereof the plaintiff has complained against him.
    The plaintiff replies, that he brought his action not only for the several trespasses attempted to be justified in the plea, but also for that the defendant, on the 23d of October, before the issuing of the writ of execution, and on another and different occasion than by virtue of that writ, took and carried away the hay mentioned in the first count'; which trespass, he avers, is another and different trespass from those attempted to be justified in the plea.
    The defendant, as to the supposed trespass newly assigned, pleads that he is not guilty, and the plaintiff joins issue thereon.
    In the Common Pleas, before Williams J., a verdict was found and judgment rendered for the plaintiff. The defendant thereupon filed the following exceptions.
    1. Because the court determined that the defendant was liable for taking and carrying away the plaintiff’s hay, although it did not appear, except by the defendant’s return on the writ, by virtue of which the supposed attachment was made, and by his declarations, hereafter mentioned, that he ever removed or meddled with the. hay, until the sale thereof on execution ; but on the contrary, the defendant offered to prove that he was ready and willing to assist the plaintiff in placing fhe hay at his entire control and disposal.
    2. Because the court admitted parol evidence of the declarations of the defendant to prove that he had attached the hay on mesne process, the declarations having been made long after the supposed attachment.
    3. Because the court determined that the defendant’s return on the writ, that he had attached “a lot of hay,” was conclusive evidence that he had attached the hay in question, and that the act was such a taking as to constitute a trespass.
    4. Because the court rendered judgment for the plaintiff, notwithstanding there were two acts of trespass or takings charged in the declaration, both of which were apparently justified in the plea, and abandoned by the new assignment, in which an act of trespass was alleged to be a different trespass from those attempted to be justified, and although there was no evidence of more than two acts of trespass or takings, and the trespass proved under the new assignment might have been proved under either of the original counts.
    5. Because the action was allowed to proceed in the name of Boynton, although there was evidence tending to prove that he never authorized it and had no interest in it, and that he had sold the hay to one Brooks, who instituted the suit.
    
      Bigelow, in support of the fourth exception,
    cited Bull. N. P. 17, 92 ; Atkinson v. Matteson, 2 T. R. 172 ; Pratt v. Groome, 15 East, 235; Oakley v. Davis, 16 East, 82; Barnes v. Hunt, 11 East, 451 ; Fallon v. Anderson, Peake’s Cas. 110; Compere v. Hicks, 7 T. R. 727 ; 1 Saund. by Wms. 299, note 6 ; 3 Stark. Ev. 1440, 1471, 1473, 1478, 1479 ; Cheasley v. Barnes, 10 East, 73.
    
      Brooks, for the plaintiff,
    contended, as to the third exception, that a legal and sufficient return by an officer upon a precept which' he had authority to serve, is conclusive evidence as to the facts returned, and cannot be controverted, except in a suit against the officer for a false return. ‘ Slayton v. Chester, 4 Mass. R. 478 ; Bott v. Burnell, 9 Mass. R. 96 ; Weld v. Bartlett, 10 Mass. R. 470 ; Simmons v. Bradford, 15 Mass. R. 82. If the defendant had simply returned upon the writ, that he had attached the hay, and the plaintiff chose to regard the hay as in the defendant’s custody, and to abstain from the use of it on that account, this action would lie, although the attachment might be void as against subsequent attaching creditors or purchasers. Gibbs v. Chase, 10 Mass. R. 125 ; Lyman v. Lyman, 11 Mass. R. 319.
    As to the fourth exception, he said that the first count was intended to apply to a taking on mesne process on the 23d of October, and the second to a taking on execution on the 25th of December. By the new assignment the plaintiff does not abandon the counts in the declaration, but he restates and insists upon the first count. The justification having rendered the time material, it was proper for the plaintiff to reply that the trespass was committed at the time when the defendant had " no such authority as he claims to have acted under ; 2 Saund. by Wms. 5 a, 5 b ; 1 Saund. 299,- note 6; Anon. 2 Lord Raym. 1015 ; 1 Chit. Pl. 606 ; and the defendant having traversed the taking on the 23d of October, as alleged in the replication, and issue being taken thereon, the case stood precisely as though the defendant had originally traversed the first count and justified the second. A demurrer to the justification would clearly have been bad, as the declaration is apparently answered by the plea ; and as the trespasses in the plea of justification are alleged to be the same that are mentioned in the declaration., the plaintiff, by traversing the justification, would have admitted them to be the same trespasses, although in fact they were different, and would thereby have precluded himself from giving evidence at the trial, that the trespasses in the plea were different from those intended in the declaration. 2 Wms’s Saund. 5, note 3, sub Jin. The plea of justification . professedly covering the whole declaration, but not reaching a part of the trespasses which the plaintiff intended in his declaration, a new assignment was necessary for explanation. 1 Wms’s Saund. 299 a, 299 6, note 6.
    
      
       See, as to new assignments, 11 Am. Jurist, 76; where this case is doubted»
    
   Wilde J.

drew up the opinion of the Court. There can be no doubt, upon the facts as we understand them, that this action was rightly brought in the name of the plaintiff. ■ It is not denied that, at the time of the supposed trespass, the property of the hay in question was in the plaintiff. It was attached by the defendant as his property, and if the taking was tortious, the right of action vested in him, and was not by law assignable. The subsequent sale might amount to an equitable assignment, and authorize the vendee to maintain the action in the plaintiff’s name; And if it were not so, it was too late to question his authority after plea pleaded. ■ If the plaintiff did not authorize the suit, the objection should have been made at the first term.

It has been argued, that a recovery in this action would be no bar to a future action in the name of the vendee ; that he might demand the property of the sheriff and maintain trover. This might be so, perhaps, if this action were prosecuted for tne use of the present plaintiff, but it is alleged in the exceptions, that the action was commenced by the vendee, and is prosecuted for his benefit; and if so, the argument clearly fails.

Whether the return of the officer, that he attached the property in dispute, is conclusive evidence of the taking, seems to be a question of greater doubt. The general rule is, that an officer’s return is conclusive evidence of the facts returned, and cannot be controverted, except in an action against him for a false return. But does the return of an officer, that he had attached personal property, necessarily imply that he took the property, so as to make him a trespasser, if the attachment should fail ? Cases, I think, may be supposed, in which evidence to disprove such an inference might be admissible. For instance, suppose an attachment to be returned at the request of the owner of the property, in order to give a preference to a favored creditor; certainly in such a case the officer could not be charged as a trespasser, for volenti non fit injuria. So if an officer returns an attachment without removing the property, leaving it in the possession of the debtor at his request; the attachment may be good for some purposes, as it would render him liable to the creditor, and would authorize him afterwards to take possession of the property. Evidence, therefore, to show that in fact the officer did not remove the property, would not expressly contradict the return. In an action of assault and battery against an officer, the return of an arrest would not be conclusive evidence against him, for the debtor might have submitted to the arrest without any force, and the officer would be allowed to prove the fact in his defence.

We think, therefore, that it cannot be maintained as a proposition universally true, that the return of an attachment of personal property conclusively proves the taking, so as to subject the officer to an action of trespass. But it is not necessary to decide whether the return in this case was conclusive evidence or not; the facts offered to be proved by the defendant are not so fully and distinctly stated in the exceptions, as to enable us to judge whether the hay was actually removed or not; and it is immaterial, because on another exception we are of opinion that the defendant is entitled to a new trial.

The plaintiff, in his declaration, has charged two distinct acts of trespass ; and these acts the defendant in his plea has undertaken to justify. Whether the plea is a good and sufficient justification, is not the question. If it°is insufficient, the plaintiff should have traversed it, or demurred. Instead of which, he has virtually abandoned the charges contained in the writ, by newly assigning another trespass, which he avers is different from those mentioned in the plea; and if so, it is different from those mentioned in the writ; for the plea avers that the supposed trespasses attempted to be justified are the same which are charged in the writ, and this averment is not denied.

To the trespass newly assigned, the defendant pleaded not guilty, and the plaintiff was bound to prove another and different trespass from those charged in the writ. This he failed to do ; only two trespasses were proved, and both might have been given in evidence upon the original counts ; consequently neither of them could be proved in support of the new assignment ; for we cannot admit that the plaintiff had a right to give evidence on the trial, of the trespass mentioned in his first count, on the ground assumed by his counsel, who contend that the evidence was rightfully admitted, because the plea was no sufficient justification of that trespass. But this is immaterial ; the sufficiency of the plea cannot be considered thus incidentally. The plaintiff was estopped to prove this trespass, by his averment that the trespass newly assigned was a different one.

He should have replied, and traversed the justification, and as the facts appear, he would have been entitled to recover on the first count. It is said that this would be an admission that the trespass attempted to be justified, was the same charged in the writ; but how could such an admission prejudice the plaintiff, if he traversed the fact, that the property was first taken on the execution ? There certainly could have been no difficulty in this form of pleading. The whole embarrassment has arisen in consequence of the new assignment, which was unnecessary and improper.

The plaintiff might have newly assigned the first trespass as to time, by averring that it was committed before the execution issued, under which the defendant attempted to justify ; but then he should have omitted the averment, that it was a different trespass. In failing to prove this averment he failed to support the issue on his part, and the verdict should have been for the defendant.

JVeio trial granted. 
      
       See Lathrop v. Cook, 14 Maine R. (2 Shepley,) 414.
     