The law is well settled, that mere nonfeasance does not make a trespasser ab initio. There must be such a positive act as, if done without authority, would be a trespass. — The Six Carpenters' Case, 1 Smith’s L. C. 162, and authorities cited in notes to said case. To make one, who originally acted with propriety under legal process, liable ab initio, for subsequent illegal acts, he must be shown to have grossly abused the authority under which he acted. Such a mistake as a person of ordinary care and common intelligence might commit, will not amount to an abuse. Taylor v. Jones, 42 N. H. 25.
An application of these principles to the case before us, makes it one of easy solution. The property levied on was subject to the attachment; consequently, the levy was rightfully made. If, under section 2529 of the Code, it was *546the duty of the sheriff to have sold the horses at an earlier period than twenty-one days after the levy, still the failure to do so, being a mere nonfeasance, did not amount to a trespass. If, as is contended, the sheriff erred in selling the horses one week before the meeting of the court, without an order authorizing the sale, this was not a gross abuse of his authority. Section 2529 of the Code contemplates a sale without an order of court, if the property “be of so perishing a nature that it will deteriorate greatly in value, or be destroyed before the meeting of the court, or if the charge of keeping it be very great.” Under this section, a sheriff is necessarily vested with discretion ; and nothing less than a gross abuse of it would make him liable as a trespasser ab initio.
The sheriff, in advertising and selling the horses, doubtless acted by analogy to the requirements of sections 2446 and 2447 of the Code, making it necessary to sell horses, when levied on by execution from courts of record, on the first Monday in the month, and to give ten days’ notice of the sale by advertisement. The object intended to be accomplished by section 2529 of the Code, might be defeated in many cases, if such analogy was always pursued ; and we must not be understood as holding that it would be proper to pursue it, in all cases.
2. One other point presented by the record may be noticed. Even if the act of selling was such an abuse of authority by the sheriff as would constitute him a trespasser from the beginning, still, it not appearing that the illegal exercise of authority was such as to warrant the conclusion that the sheriff intended from the first to do wrong, and to use his legal authority as a cover to his illegal conduct, the action was prematurely brought, it having been commenced more than two weeks before the sale.
My brethren both concur in an affirmance on the grounds stated above, but base their conclusion in part, also, upon the authority of the case of Hartshorn v. Williams, 31 Ala. 149.
Let the judgment be affirmed.