McGough v. Wellington ( 1863 )

Hoar, J.

1. The return of an officer upon his precept is conclusive evidence in the suit or proceeding in which it is made, but is not conclusive in a suit upon a collateral matter in which the officer is a party, and relies upon it to prove his case. The truth of the return is then in issue, and the return is only prima facie evidence. This was adjudged, upon a full review of the authorities, in Whithead v. Keyes, 3 Allen, 495.

2. The return not being conclusive, it was competent for the plaintiff to prove that one of the appraisers was not a disinterested person; and it is agreed that be was the brother of the attaching creditor. He therefore would not be “ disinterested ” within the meaning of the law. Wolcott v. Ely, 2 Allen, 338. The officer having sold the property attached in a manner unauthorized by law, the sale was tortious, and he became a trespasser ab initia.

3. But the defendant contends that, as this suit was commenced against him while his attachment of the property was lawful and regular, there was no cause of action then existing; and that a plaintiff cannot recover upon a cause of action which first accrued after the commencement of the suit; which is undoubtedly true. But the doctrine of trespass ab initia is not inconsistent with the rule which limits a plaintiff’s recovery to a cause of action which he has when bis suit is commenced. An officer who has a precept which authorizes him to take property may take it under and by virtue of his precept; or he may take it wrongfully to convert it to his own use. If at the trial he justifies under his precept, and has conducted himself strictly according to its requirements, he is protected, because he is then entitled to the conclusive presumption that he acted under his lawful authority. But if, before the trial, he has exceeded his lawful authority, the law presumes that the original taking was not for the purpose of serving his precept, but as a trespasser. The facts which occur after the suit is commenced do not constitute a cause of action, but are merely evidence from which arises the absolute presumption that his first taking was a trespass. The character of his original act is shown by his subsequent conduct. It is in the nature of an admission that he did not act under his precept, and such an admission is as effectual in proof if made at one time as at another. The cause of action is the original unlawful taking. That the original taking was unlawful is shown by his subsequent conduct.

4. The title of the plaintiff to the property in controversy, although that of a grantee by a conveyance fraudulent against creditors, was good as against the vendor, and as against all other persons except creditors proceeding to enforce the collection of their debts in the manner provided by law. It was voidable, and not void; and could only be avoided by creditors, availing themselves of legal process to appropriate the property, and procuring service of the process to be made in a regular and lawful manner. Against an irregular or unlawful seizure and sale it was a valid and perfect title, and the plaintiff may therefore maintain this action.

Judgment for the plaintiff upon the facts agreed. Damages to be assessed in the superior court.