The act of the defendant and the seizing officer, having made them trespassers ah initio, the plaintiff might have sued both, for both were principals; he, however, has elected to sue the defendant, and against him he is entitled to recover the value of the vessel. The defendant, as to the proceeds of the sale in the admiralty, must be considered as the purchaser of the vessel, and to those proceeds, therefore, he is entitled. I can see no difference between this case and the case of a distrainor, using the distress. The rule may be hard upon the defendant, but, as a general rule, it is beneficial to the community. Should the defendant’s conduct, in this particular, be deemed permissible, it would open the door to great enormities.
Verdict for plaintiff, $600,(1)
*219Wells and Brinkerhooff,\ for plaintiff.
Baldwin and Ferguson, for defendant.
This case was fully discussed before the supreme court, and decided in August term, 1814, (11 Johns. 311,) Thompson, C. J., and Spencer and Tates, Justices, being in favor of a new trial, and Tan Hess and Platt, Justices, *219against it. "Kent, 0. J., having in the interval been promoted to the office of chancellor.
Spencer, J., delivered the opinion of the court, and held that the defendant could not be considered a trespasser db initio, inasmuch as he was not implicated in the first taking; and that the plaintiff, being dispossessed of his vessel by legal authority, could not maintain trespass fbr an act done with leave of the person holding possession, whilst he was so dispossessed. Tan Ness, j"., who delivered the opinion of the dissenting judges, held that the moment the seizing officer loaned the vessel to the defendant, he lost his official character, and became a trespasser db initio, that thereupon, as between the seizing officer and the plaintiff, the plaintiff was entitled to possession, and the law consequently created in the plaintiff a constructive possession, sufficient to maintain the action against the defendant. This cause was tried a second time, at the April sittings, 1814, before Mr. Justice Tan Ness, who, when the cause was about to be submitted to the jury, stated, that under the decision of the court in this case, on the motion for a new trial, he should feel himself bound to charge the jury against the plaintiff's right to recover. The plaintiff then submitted to a non-suit, with liberty to move the court to set it aside. The case was thereupon re-argued and decided in August term, 1816. 12 Johns. 414. At the second trial, it appeared that the seizing officer had reported the seizure to the defendant, who approved of it; the court held this to be a complete ratification and adoption of the act of seizure, and that it put the defendant, in whose name the vessel was libelled, in the same situation as if he had made the seizure. The court also held, that the abuse by the defendant, of the authority given him by the law, would have made him a trespasser ah initio, if the district court had not granted the certificate of probable cause; that this certificate, as to the act complained of¡ puts the seizing officer in the situation of a person who is guilty of an abuse of an authority in fact, who does not thereby become a trespasser ah initio, but is liable to make satisfaction to the owners of the property, for the abuse of his authority. The court thereupon decided, that the plaintiff’s remedy was by a special action on the case, for whatever damages he had sustained by defendant’s using the vessel, contrary to his duty as a public officer.