Waterbury v. Lockwood

Baldwin, J. (after stating the case.) The first point made on this motion is, that the superior court improperly admitted in evidence the warrant in the hands of . the defendant, and his endorsement thereon, showing that he took the horse, &c. by virtue of those warrants, and advertised the same for sale, &c. To the admission , of this evidence it was objected, that it furnished no justification, because the history of the subsequent proceedings of the officer, therein detailed, manifested such irregular conduct and neglect of duty, attended with a loss of,the property, as rendered him still liable to the plaintiff’s demand as a trespasser ab initio, and of course could not avail him as a defence. It then becomes important to inquire what conduct of the officer will, by relation, make him a trespasser ab ini-tio. An omission or neglect of duty is not sufficient. The action of trespass cannot be supported where no trespass has been committed; yet in some cases an act in itself lawful, may, in consequence of another act, by relation become a trespass; but in all such cases, the subsequent act must be an act of trespass, and committed before action brought. In this case, no such subsequent act of trespass appears. At most, the conduct of the defendant is a neglect of that care and diligence which the law required of him; and though such neglect may make him liable in a proper action, it cannot make him liable in this. There is nothing on the return showing either an abuse of the power given by law to the defendant as collector, nor any actual trespass by him committed on the property taken, which can, by relation, make him a trespasser from the beginning. I am, therefore, clearly of opinion, that the warrant and return were admissible to show that the taking on the first of July, 1808, was lawful; and that at the date and service of the plaintiff’s writ, no trespass had been committed by the defendant. They furnish jirima facie evidence of these facts, and a [265] justification to that time, and if not rebutted, must pro* duge. a verdict in favour of the defendant. f The second point is, that the'charge was incorrect. ; It is evident, from the statement of the case before us, that no.question was raised, as to the truth of the fact of the levy, nor any pretence Of actual trespass on the properly other than by the levy^; and if I am correct in my premises on the first point, it will follow, of course, that the defendant was entitled to a verdict. Though the -question of due diligence, and of other facts submitted to the consideration of the jury, were not necessary to a correct decision; yet the fact that they were so submitted and found in favour of the defendant, can surely furnish no ground in favour of the plaintiff for a new trial; for if they had found otherwise, it would have been immaterial, and the verdict is now on legal principles correct. I would not advise a new trial. In this opinion the other judges severally concurred. New trial not to be granted.