The opinion of the court was delivered by
Redfield, J.There are numerous points in this case, upon some of which the court are not fully agreed. But having nó difficulty in reference to many, we think it best to determine those.
1. The court charged the jury, that although the defendants made out all the facts alleged in their plea in bar, still the plaintiffs might recover, in this form of action, the amount of money for which the horses were sold, and interest from the time of the demand. No doubt, if the officer had no right to deduct the expenses of keeping and sale, — of which we say nothing, (not being agreed fully, — ) the officer might be liable, in some form of action, for that amount. But it seems to us, — 1, That in that case the officer is not liable in trover. A refusal to pay over the money, or claiming to retain part of it, upon grounds which are not well founded in law, will not make him a trespasser ab initio. And unless .that is the case, trover will not lie, even against the officer. It is like any other refusal to pay over money in his hands. 2. That trespass on the cáse, for any mere non-feasance of the deputy, will only lie against the sheriff, — this never being sufficient to make him a tort-feasor ab initio. 3. That in no case can the creditor be jointly liable for any wrong of the officer, unless he in some way participated in it, or rati*558fied and confirmed it, after becoming aware of it, 4. That the only proper action, in this view of the case, against the deputy, is for money; and in that action the creditor cannot be joined, unless he has been jointly concerned in the detainer.
2. The court also charged the jury, that, if the offic.er-made the sale without notifying the defendant, he did make himself a trespasser db initio. But this will not make the creditor liable-in any way, unless he did something more than request a sale, — which will be considered a legal sale. Possibly, if the creditor partakes in the wrong, or justifies it after knowing it, he should be held as a trespasser db initio. But nothing of this kind appears in the case; and the mere joining in a special plea in bar, when there is also a general several plea on the record, under which all this defence is competent, will not involve the creditor with the officer, nor excuse the court from giving proper instructions to the jury, as to all the points in the case, as to both defendants considered separately, whether particularly requested upon all the points, or not.
3. As to neglect in keeping the harnesses, the plaintiff doubtless has some remedy ; but not in trover, it would seem,-4-1, For reasons already assigned, being mere non-feasance; — 2, For the same reason the remedy in case should be against the sheriff; — and 3, The creditor cannot be joined, unless he participated in the wrong.
4. In regard to the right to sue for an excessive attachment, the .questions as to the sufficiency of the proof and the declaration may be considered together. We think the plaintiff, to make his case, must allege and prove much the same, that he would in a suit for a malicious action, — that is, want of probable cause and malice express. In this view of the case it seems somewhat absurd to expect to involve the officer. The party, ordinarily, will be the only one liable. We have not examined critically, to see whether the proof or ithe allegations come up to this requisition of the law upon this point.
Judgment reversed, and case remanded for a new trial.