This was trespass de bonis asportatis against the defendant, who is a constable, charging the unlawful taking of the goods specified. It appears that the goods were taken from the plaintiff’s house, by the defendant, whilst in the execution of a search warrant; but not being the goods specified in the warrant, the taking was not justified by it, and was of course a trespass. It was, however, probably not a case for exemplary damages, and any claim to such damages was waived.
*319It appears to us that the directions given by the court were strictly correct in point of law, and qualified with great precision and accuracy. Had the goods been in fact returned to the plaintiff, it would not have purged the trespass, nor barred the action ; but it would have prevented the plaintiff, if they had been restored in as good a plight as when taken, from recovering the value in damages. Greenfield Bank v. Leavitt, 17 Pick. 1. 1 Rol. Ab. 5. Moon v. Raphael, 2 Scott, 489, and 2 Bing. N. R. 310.
The instruction excludes all collusion, between the defendant and the attaching creditor or officer, to cause or expose the goods to be attached. The plaintiff had demanded the goods, the defendant had yielded to that demand, and whilst preparing to deliver them, they were attached as the property of the plaintiff, and taken into custody by the attaching officer. The property was thus in the custody of the law by legal process, which the defendant could not resist or control. They went to the plaintiff’s benefit, as much as if they had been returned, and such application operates to the same extent in mitigation of damages. Squire v. Hollenbeck, 9 Pick. 551. Pierce v. Benjamin, 14 Pick. 356. That they must enure to his benefit seems obvious. The plaintiff’s case assumes that the goods were his property. They were attached as his. If the creditor recovers judgment and takes them in execution, they go to pay his debt; if not, they are laid up in the custody of a responsible officer of the law for his use, to be delivered on demand. In no event could the defendant claim them.
Another point was suggested at the bar, namely, that some of these goods were by law exempt from attachment. But no such point was made at the trial, and no inquiry took place into the facts in relation to it. Besides; if it were so, this defendant is not responsible for it; the plaintiff’s remedy is against the attaching officer. Buckingham v. Billings, 13 Mass. 82.
Exceptions overruled.