The opinion of the court was delivered by
Barrett, J.
The statute requires that, in case of the sale of prop*578ertyon execution, there should be a notification posted up in some public place of the time and place of the proposed sale, and that the sale should be made at such time and place, subject to the right of the officer, for proper 'cause, to adjourn said sale to some other proper time and1 place. In the present case the property was not sold at the place named in the notice. In view of what is stated in the exceptions on the subject, this court is not at liberty to presume that the defendant adjourned the sale from that place to the one at which he sold the property. The county court were to find all the facts, whether shown by the evidence, or educed by legitimate presumption. Whether the sale was adjourned or not was a question of fact. The exceptions state that it did not appear that said sale was adjourned, or that the plaintiff consented to the sale at that place. The existence of one or the other of these facts was material, in order to warrant the defendant in selling the property at a different place from the one named in the notice. The exceptions also exclude the idea that the place where the sale was made came within the terms of the notice by which the place was designated, viz: “ at or near the plaintiff’s dwelling-house.” “Hein fact sold them at the dwelling-house of one D. B. Leray, a neighbor of the plaintiff, who lived about sixty rods from the place where the defendant posted said notice thus pulting the place where the property was sold in distinction from, and in contrast with, the place named in the notice. Indeed, it is not distinctly claimed in the argument that the sale was made at a place within the fair scope and meaning of the terms used in the notice. The defendant departed from the authority with which the law clothed him, in virtue of the execution which he held, in making the sale at the place where he did make it. It was only by that authority that he had any right to take, or hold, or sell, or apply the avails of the property. When he did the unlawful act of selling the property at that place, he lost the protection of that execution accorded to him by the law, and the act thereupon assumed the same legal character, and involved the same legal consequences, as if he had not held the execution. It was not a mere negligence in the discharge of incidental or implied duties growing out of his lawful custody of the property, nor a violation of merely such duties, nor a *579mere non-feasance of express duties resting upon him. In this respect the case differs from that of Lamb v. Day & Peck, 8 Vt. 407, and of Briggs v. Gleason, 29 Vt. 78. He was proceeding to do an official act which the statute authorized him to do, and required him to do it in a manner specifically prescribed. Instead of doing it in that manner, he departed from the requirement of the statute and did it in direct violation of it. As said by Williams, Ch. J., in Bond v. Wilder, 16 Vt., 393, “as he conducted with the property in a manner different from what the law directs, he was a trespasser ab initio, and cannot protect himself under the execution.” Being such trespasser, it follows of course that trespass would be a proper form of action whereby the plaintiff might assert and enforce his rights. The case cited of Hale v. Miller, 15 Vt., 211, in which Redfield, J., delivered the opinion, was an action of trover by the debtor, against the creditor in an execution, who had purchased some of the property sold by the officer on said execution, in which action the plaintiff claimed that the defendant got no title, for the reason that the officer committed an irregularity in the sale of the property. That case involved no question as to the liability of the officer, but only, whether, on the case as made, the defendant had title to the property as against the plaintiff. The reference to 1 Chit. Pl. 158 (old edition) does not apply to cases of this kind. And Wheelock v. Archer, 26 Vt., 380, seems not to involve any question as to the proper form of action in such cases. It is proper to bring to notice, in connection with the case of Hale v. Miller, that Redfield, Ch. J., said in Briggs v. Gleason, supra, "the officer being thus made a trespasser from the beginning is liable to trespass or trover.”
The remaining question is, whether the plaintiff was entitled to the rule and measure of damages adopted by the court. The proceeds of the sale were applied on the execution on which the property had been taken and advertised for sale. It is claimed that, as the judgment debt was thereby pro tanto satisfied, the damages should be diminished to the same extent. The difficulty in the way of adopting this view arises from the fact that the sale was illegal. The ■ defendant had no authority to sell and apply the property in the manner he did. In order to entitle him to apply the property in payment *580of that judgment, it was necessary for him to .make a legal sale of it. He was not the plaintiff’s agent. He was the agent and officer of the law, proceeding in invitum against the plaintiff’s right to hold and dispose of his own. He could only affect and bind the plaintiff, in disposing and applying the proceeds of the property, by pursuing the coarse prescribed by the law. Exceptúo far as the law assumes to sell and apply one’s property in payment of his debts, it is Ms right to exercise his own judgment, and act upon his own preferences, and adopt his own modes in that respect. The cases cited by the defendant’s counsel are in harmony with this view.. In Lamb v. Lay & Peck, supra, the property was lawfully levied and sold on execution and the avails applied. The wrong-doing, for which the action was-brought and maintained as for a trespass, ab initio, all occurred while the property was hold under attachment on mesne process. Indeed, Lamb had brought his suit for the property and recovered a judgment, from which an appeal was taken and was pending, when Day obtained his judgment and execution on which the property was ultimately taken and sold, and the proceeds applied. The principle on this subject in Irish v. Cloyes & Morse, 8 Vt., 30, is the same as in Lamb v. Day & Peck. The principle and rule are well stated by Williams, Ch. J., in Stewart v. Martin, 16 Vt., 397, “ though an officer or any other person may take property wrongfully, yet, if it has been subsequently legally taken and sold on execution against the claimant, such sale will reduce the damages,” &c. When Judge Redeield, in Briggs v. Gleason, says, “ It is true that if he (the officer) has subsequently applied the property in payment of the debt, this will go in mitigation of damages,” it must be taken ,in the light and sense of the idea expressed by Judge Williams, viz, that the property was legally taken and sold. In Collins v. Perkins, 31 Vt., 624, the right to mitigate the damages in trespass, where the officer had rendered himself liable ab initio, was put by Judge Poland on the same ground, viz, that the plaintiff had “ subsequently received back the property, or the same was legally disposed of for his benefit.” It is true that, since the case of Turner v. Lowry, 2 Aik. Rep. 72, and of Hall et al v. Brooks, 8 Vt., 485, the rule of damages in eases of negligence by officers has undergone considerable change *581in their favor; but, in cases where they have been held to subject themselves as trespassers ab initio, we understand the law, both as to liability and as to measure of damages, has undergone no change. The case of Paul v. Slason et al, 22 Vt., 231, constitutes no exception. In that case the question was, whether the defendants were liable as trespassers ab initio for the alleged misuse of the property while held under the attachment on mesne process, and before judgment and execution in the suit on which it had been attached, and not as to any alleged illegality in the service of process, or the levy and sale of the property on execution.
On the whole we think the court was correct in the rule and measure of damages adopted. What may be the defendant’s posture and rights, and remedy, growing out of this recovery against him, in view of the payment that he made on the execution which he levied on the property, is not now before us for decision.
In pursuance of the views above expressed the judgment would be affirmed, irrespective of the questions made p,s to the exemption of the property under the statute. We refrain from the discussion of those questions on this occasion.
The judgment is affirmed.