This was an action of trover brought by the plaintiffs Spaulding and Thompson, part owners of certain goods, for the alleged conversion of them by the defendant.
The defendant pleaded the general issue with a brief statement of three special matters of defense, viz :
1st. That the defendant was a constable and attached the goods on a writ dated October 9, 1895, issued by a trial justice in favor of one Connor for rent of the store and against the plaintiff Spaulding, returnable December 7, and that on the return day the suit was settled, the goods released from attachment and turned over to Spaulding.
2nd. The defendant justified under an execution issued against the plaintiff, Thompson, in 1894.
3rd. The defendant claimed that when he attached the goods on the writ in favor of Connor, Spaulding told him to hold the goods until Connor got his rent.
But the justification under the old execution against Thompson appears to have been abandoned, and the ground of defense mainly relied upon at the trial was the alleged attachment of the goods on the Connor writ.
It appeared that this writ was made by the trial justice before whom it was returnable, and the statute (R. S., c. 83, § 32,) declares *202that “every action so commenced shall abate.” The plaintiffs accordingly argued that even if the defendant held the Connor writ at the time of the seizure of the goods, it would afford him no protection; but contended, as a matter of fact, that it was not issued until November of that year, more than a month after the seizure was made. Upon this issue of fact, the jury made a special finding that the defendant did not hold the trial justice writ in favor of Connor, at the time he took possession and control of the goods, and returned a general verdict in favor of the plaintiffs. The defendant moves to have the verdict set aside as against the evidence.
Upon the principal issue of fact submitted to the jury the testimony was sharply conflicting and all efforts to reconcile it are attended with difficulty, but after a careful examination of all the evidence and the arguments of counsel, it is the opinion of the court that the case does not present an exigency which justifies a new trial. Connor, the plaintiff in the trial justice writ, testifies that he did not make out the bill attached to that writ until November, that he was present at the time of the seizure of the goods by the defendant, and knew that the goods were not taken on his writ because it had not been made. The plaintiffs both testify that, at the time of the seizure, the defendant stated that he was taking the goods on the old execution against Thompson and never made any mention of the Connor writ until long afterward. On the other hand the trial justice who made and issued the writ, testifies that it was made on the day it bears date, October 9, and the defendant testifies that he had the writ in his possession on that day and took possession of the goods by virtue of an attachment on it. They are corroborated to some extent by Mr. Hovey who states that on the day of the seizure, or the day the goods were moved out, Connor came to his office to have a writ made on his bill for rent, but that he declined to make it and did not personally know when it was made.
But the result reached by the jury did not necessarily require them to believe that the Connor writ was ante-dated, for there was sufficient evidence to authorize them to find that the defendant *203took possession and assumed control of tbe goods on the seventh day of October, two days before the date of the Connor writ.
The defendant’s evidence tending to show a final settlement of the entire controversy and a waiver on the part of the plaintiffs of any wrong doing by the defendant in taking the goods without authority, is not so clear and definite, and when compared with the plaintiffs’ evidence, is not. so conclusive as to warrant the court in disturbing the verdict on that ground.
Motion overruled.