The oxen or horse, required by the plaintiff for farming purposes, and one cow, were exempt from attachment. Laws of 1871, c. 30, s. 1.
The plaintiff, on request, refused to elect whether he would retain the oxen or horse as an exempted team. Having the option given him of retaining either the oxen or horse, and refusing to exercise it, he could not afterwards complain, and make the defendants liable for taking the oxen and not the horse. Howard v. Farr, 18 N.H. 457. All the plaintiff's cows were attached and driven away; but on Webster's learning that he had attached all the cows, one was returned four days after, and, so far as the case cows, received by the plaintiff without objection. While the officer was present to attach the cows and oxen, they were pointed out to him by the plaintiff, with the remark that there were more in the field. Before the cattle were driven away, the plaintiff forbade the attachment, not because a cow, the oxen, or any of the animals were exempt, but because he learned that his farm had been attached. Whether or not the attachment was completely made when the plaintiff informed the officer that there were more cattle in the field, the officer had a right to understand when he actually took the cows into his possession that they were not the plaintiff's only cows. The refusal to furnish a receiptor, and forbidding an attachment, was on the express ground of excessive attachment, and did not revoke or qualify the information before given, and upon which the officer was acting. Having led the officer *Page 473 to suppose he had other cows than those attached, not claiming some cow, nor any particular cow, as exempt, and receiving back one cow, released from attachment, without objection, the plaintiff could not, after the other cows were sold, hold the defendants liable.
The claim that the attachment was excessive and unlawful because the defendant officer, before attaching the chattels, had, on the same writ commanding him to attach property of the value of $300, attached the plaintiff's real estate valued at $4,000, cannot be upheld on any facts stated in the case. To make an officer a trespasser for exceeding or abusing his authority, he must be shown to have committed acts which persons of ordinary care and prudence would not, under like circumstances, have committed, and made such a departure from duty as to warrant the conclusion that he intended from the first to do wrong, and use his legal authority as a cover for an illegal act. Taylor v. Jones, 42 N.H. 25, 35; Closson v. Morrison, 47 N.H. 482. It does not appear that the officer acted in bad faith in making the attachment, or that he was culpably negligent in not ascertaining the value of the real estate or that it was unincumbered, before attaching the personal property.
Exceptions overruled.
SMITH, J., did not sit: the others concurred.