Parker v. Pattee
Superior Court of New Hampshire
This was an action of trespass, de bonis asportatis. The cause was tried here upon the general issue, at April term, 1828, when it appeared in evidence that the defendant, being a deputy sheriff, took the goods mentioned in the declaration by virtue of a writ of attachment in favour of Gordon and Hayward, against one Palmer. The goods had been sold by Palmer before they were taken by the defendant to tbe plaintiff, but the sale was void as against the creditors of Palmer.
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This was an action of trespass, de bonis asportatis. The cause was tried here upon the general issue, at April term, 1828, when it appeared in evidence that the defendant, being a deputy sheriff, took the goods mentioned in the declaration by virtue of a writ of attachment in favour of Gordon and Hayward, against one Palmer. The goods had been sold by Palmer before they were taken by the defendant to tbe plaintiff, but the sale was void as against the creditors of Palmer. The goods were taken by the defendant on the 9th November, 1821, and this action was commenced on the 21st March, 1822.…
1Opinion of the Court
The opinion of the court was delivered by
Richardson, C. J.
It is a well settled general rule, that a mere nonfeasance shall not make an officer a trespasser ab initio. 2 Saund, 61, c & d.
But in some cases, an officer may, by mere nonfeasance, forfeit the protection of the process under which he acts, and become liable to be treated as a trespasser, although his ⅜conduct was in the first instance lawful. Thus if he neglect to return mesne process, he cannot be permitted to use it as a justification of any act he may have done under it. 1 Chitty, 186; 3 N. H. Rep. 229. This principle, which may…
2Cases cited1 opinion
- Barrett v. WhiteSuperior Court of New Hampshire · 1825
3Cited by1 opinion
- Smith v. MooreSuperior Court of New Hampshire · 1845