48 Wis. 660 | Wis. | 1880
It is essential to determine at the outset the nature of this action, because upon that quéstion rests entirely the sufficiency of the defense. The counsel for the defendant insists that it is purely an action of trespass de bonis asporta-tis, while the counsel for the plaintiff claims that it should be treated as an action of trover for a conversion. The point is technical, yet it seems to be a vital one in view of the justification set up in the answer and established upon the trial. Upon looking at the complaint, we have no doubt that it is simply an action for a tortious taking and carrying away of personal property from the possession of the plaintiff.
The complaint charges and alleges, in substance, that on the 26th day of September, 1876, the defendant wrongfully broke and entered upon the farm of the plaintiff, and took from his possession the personal property described, being the property of the plaintiff, and then and there carried the same
On the trial, the defendant was permitted to give testimony, against the plaintiff’s objection, in support of these averments of the answer, showing that all the plaintiffs in the attachment suit named were creditors of Nelson Grafton, and that the property was seized upon writs of attachment sued out by them; and also introduced proof which tended very strongly to impeach the validity of the sale made by Nelson Grafton to the plaintiff, as -against the former’s creditors. The warrants of attachment were offered in evidence by the plaintiff; and were valid and regular in form. The plaintiff also introduced papers and transcripts of the justice’s docket of proceedings in the attachment suits, which showed that the sheriff seized the property on the warrants of attachment, and subsequently sold it under executions issued on judgments rendered therein. But it appeared that these judgments were invalid, by reason of the failure of the justice to cause notice to the attachment defendant to be posted or published as required by law, where personal service of the writs was not made. Champion v. Argall, 25 Wis., 521. It appeared that the defendant was present, aiding and directing the officer when he seized the property irpon the attachments, but did not in -any other way participate in its taking or possession.
We do not concur in this.view of the law. In the present case we have only to do with the sufficiency of the justification of the'defendant, who had no other participation in the taking than by aiding the officer to make the levy on that occasion. ITe has not been guilty of abuse of authority, or of any wrongful act, which would render him liable as a trespasser. The failure of jurisdiction in the attachment suits is not attributable .to any act of omission or commission on his part. It was the fault alone of the justice, who failed to have the proper notice published. It is true, it appears that the defendant received a portion of the money realized on the sale of the property under the executions, and possibly rendered himself liable therefor in some other form of action. That is a point, however, we need not now consider. But the question here is, whether this action of trespass can be maintained against the defendant under the facts and circumstances clearly
Of course, the rule is well settled that one who at first acts with propriety under an authority or license given by law, and afterwards abuses it, may be treated as a trespasser from the beginning. The reason of the rule, as stated by an elementary writer, is, “ that it would be contrary to sound public policy to permit a man to justify himself under a license or authority allowed him by law, after he had abused the license or authority thus allowed him, and used it for improper purposes. The presumption of law is, that he who thus abuses- authority assumed the exercise of it in the first place for the purpose of abusing it. The abuse is, therefore, Very justly held to’ be a forfeiture of all protection which the law would otherwise give.” Waterman on Trespass, § 493. Also, Ross v. Philbrick, 39 Maine, 29; Everett v. Herrin, 48 Maine, 537. But latterly courts are not inclined to extend the rule which makes one a trespasser by relation; and the above author says that, “according to modern English cases, to implicate one as a trespasser db initio, he must do, or consent to, some act which goes to show that the original taking was with the purpose of putting the thing to an illegal use. These decisions rest upon the avowed ground of narrowing, to the utmost, the doctrine of making officers and others trespassers by means of some technical irregularity in the detail of their duties.” Section 492.
In Stoughton v. Mott, 25 Vt., 668, will be found a very
By the Court. — The judgment of the circuit court is affirmed.