The opinion of the Court was delivered by
Paddock, J.Two questions are raised by this case; first, whether the advertisement wherein was set forth the time the horse was to be sold, ommitting the place, was legal; secondly, whether the sale under such notice, would make the defendant a trespasser ah initio.
The only object in advertising property for sale, is to give notice to those who may wish to purchase, of the time, and place where, the same will be offered ; and without specifying both, neither the spirit nor intent of the statute is complied with. The statute is to have a reasonable construction ; and if one part might be dispensed with to suit one case, another part might be to favor some other, and so on, until the whole statute would be frittered away. The time might be better omitted than the place where a sale is to be made ; for if the time were omitted, one intending to purchase could employ another to give him notice when the article was set up : but iheplace being omitted, he could employ no means to be informed.
I recollect a case before the Supreme Court in Essex County, in 1822, Clark vs. Balch, in which this same question was .decided. The case was this : Clark, being a private in a militia company, had neglected to appear on a day appointed for training,and was fined, and an execution issued, and was put into the hands of Balch, the orderly sergeant of the company, for collection, who levied the same on a horse belonging to the delinquent; adversised the same for sale, and sold after the usual time of notice.
The delinquent then brought his action DÍ trespass against Balch, and on the trial, it appeared, that after the advertisement had been posted up four days, it was discovered that the place of sale had not been mentioned j and it was then supplied by the of*46ficer ; and the sale was made in ten days after, and was adjudged by a full court to be irregular; and the plaintiff recovered.
It is urged that the plaintiff has no reason to complain, as he1 knewthe time and place of sale, and actually sent an agent and bid the property off. That can make no difference here, whatever' it might do on the minds of the jury, in assessing damages. The' question is, whether the property was legally disposed of or not s if legally, the plaintiff is divested of all right and interest in it: but-if not, he has his claim against the defendant who seized it: and whether that claim can be prosecuted in an action of trespass, os' not, is our next enquiry.
It is urged by the defendant, that trespass will not lie in the present case ; that the first taking being lawful, a subsequent irregularity in the disposition of the property, will not make the seizor a trespasser ah initio. The case cited from the 15 Johnson, Gardner vs. Campbell, does not tend to support this position. That was an action of replevin for certain goods taken on execution by an officer, who afterwards, having received the money of the execution debtor, to the full amount of the execution,, and having given a receipt for the same, proceeded and sold the goods. The case was submitted to the Court upon a demurrer to these facts. Judge Spencer, in delivering the opinion of the Court, said, “ that the pleas admit the original caption to be lawful, and, therefore, replevin did not lie.” He virtually admitted, that where the original taking was lawful, and afterwards the officer committed a mere nonfeasance, such as a refusal to deliver an article distrained, trespass would not lie : but did expressly recognize the case of Hopkins vs. Hopkins, reported in 10. Johns. 269, as being law, which goes fully to establish the contrary of the doctrine contended for here by the defendant.
In the Six Carpenters case, 8 Co. 290, it was ruled, “ that when entry, authority or licence is given to one by the law, and he abuses the same, he shall be a trespasser ab initio: but where entry, authority or licence is given by the party, and he abuses it, there he shall be punished for the abuse, but he shall not be said to be a tresspasser ah initio.” And the same principle was established in the case of Reynolds vs. Champerton, Cro. Charles, 228. All the Court were of opinion, that to prevent the plaintiff from fishing in the defendant’s fishery, he might legally distrain the plaintiff’s nets and oars damage feasant, to stop his further fishing; but in cutting them, made himself a trespasser ah initio,
*47And where a lawful taking is not followed by some positive act, by which the interest of the owner, or the property itself, is partially or wholly destroyed; but by an irregularity in the disposition of the same; as for instance, not removing the property with reasonable dispatch — the distrainer'makes himself a trespasser ab initio. Griffin vs. Scott, 2. Ld. Ray. 1424. To satisfy ourselves of which, we hardly need any other evidence than the Statute of llth Geo. II. which provides “ that where any “ distress has been made for rent, and any. irregularity, orunlaw- “ ful act shall be afterwards done by the party distraining, the dis-u tress itself shall not therefor be deemed unlawful, nor the par- “ ty making it, be deemed a trespasser ab initio; but the party ag~ grieved by such unlawful act or irregularity, shall and may re-il cover full satisfaction for the special damage he shall have sus- “ tained thereby, and no more, in an action of trespass or on the “ case, at the election of the plaintiff.” And in Winterbourne vs. Morgan and others, 11 East, 395, though the distress was for rent, yetthe defendants, remaining in possession for fifteen days, during the last four of which they were removing the goods which were afterwards sold under the distress, the law giving but five days for that purpose, were adjudged trespassers ab initio.
It is evident from the wording of the above act of 11th Geo. II, and more especially its preamble, that it was a remedial and not an explanatory act; for the latter recites the hardship upon landlords, against whom damages, as trespassers ab initio, had been recovered to the amount of the rent due for which the distress had been made, on account of some irregularity or tortious act in the disposition of the distress taken. To relieve them from such conclusions of the law, the 19 th section enacts “ that where any distress has been made &.c.” before recited.
And Sir William Blachstone, in his Commentaries (3 voL p, 15) admits, that before the passage of this Statute “ if any one irregularity was committed, it vacated the whole, and made the distrainors trespassers ab initio.”
And the same principle has been recognized by the Sup. Court in Massachusetts, in the cases of Purrington vs. Loring, 7. Ms. R. 388, and Winslow vs. Loring, 7. Ms. 392, In the former-case, the property being distrained on a warrant, was advertised but twenty four hours before sale; whereas, the law required it to have been four days. In the latter, an article having been sold on execution, the purchaser refused to pay for it, and the officer-consented to set it up again ; and it was bid oil at a less price than. *48^ was at first. And fbr those irregularities, the officer in both cases was adjudged a trespasser ah initio.
Thus stood the law anciently, and it has not been departed from in later days; and if this Court is governed either by precedent or principle, they must decide in favor of this form of action, in the present case.
The defendant further contends, that the law appoints the sale to be made in this case, at the place where the horse was impounded ; and hence it is not necessary to notice the place in the advertisement. Such does not seem to be the letter of the Statute ; and the policy of the law requires every publick sale to be made in a place more publick than the stable of a private individual.
The court are of opinion, that the evidence offered by the defendant was properly excluded; therefore, the judgment of the County Court must be affirmed.