This is a novel attempt to extend the doctrine of trespass ab initia, which in our opinion is not sustained on principle or by authority. The officer was guilty of no wrongful or illegal act towards the plaintiff or his property, and committed no excess or violation of his authority in any matter which in the least degree trenched on the legal rights of the plaintiff. The property conveyed in mortgage to him was liable to seizure on execution against the mortgagor, because the mortgage had not been recorded according to law, and the officer in taking and selling it took no step which was not fully authorized in the due service of his process, so far as any right or title of the plaintiff in the property was thereby affected. Towards the plaintiff therefore he was not in any sense a trespasser. He did no act in relation to him or his rights in the property which the law can regard as an excess or abuse of authority. There is therefore no basis on which to rest the legal fiction by which an original wrongful intent in relation to the property of the plaintiff can be inferred from any subsequent act of the officer, and by reason of which the plaintiff can fix on him the responsibility of a trespasser ab initia. The adjudged eases go no farther than to hold that where a license or authority is given to any one by law, and he exceeds or abuses it, he can be held liable as a trespasser ab initia to him whose rights or property are in any way injured or affected by such abuse or *196excess. But no case can be found where a person against whose property and rights no excess or abuse has been committed can rely on a wrong or injury done to another, as evidence of an original unlawful intent towards him, and thus convert an officer exercising a lawful authority into a trespasser ab initia. Taking it for granted, without deciding the point, that in selling the hay, under the circumstances proved at the trial, the officer was guilty of such excess or abuse of his process as to make him a trespasser towards the judgment debtor, he did not thereby do any act which in any degree infringed on the rights of the plaintiff, or which tended to make him answerable to him in this action.

The evidence of the settlement with the plaintiff in April 1858 seems to have been admitted under some misapprehension as to dates. Inasmuch as it was made after the commencement of the action, it was under the answer competent only in mitigation of damages, and not in bar of the cause of action set out in the second count of the declaration. As the evidence was admitted generally, and may have had an effect on the minds of the jurors in finding their verdict, its admission furnishes a sufficient reason for granting a new trial on that count.

Verdict on second cownt set aside.