The opinion of the court was delivered by
Redfield, J.The first question in the case seems to be more one of fact, than any thing else, that is, whether the officer really made the last entry upon the plaintiff’s premises, to complete his search for the lost goods, or whether the entry was a wholly distinct matter, and for another purpose. Ordinarily, in special pleading, such subsequent and distinct entry must be newly assigned by the plaintiff; but when the defence comes in by notice, under the statute, no replication is required; but the proof is the same, as where formal pleadings are made. And it was never denied, or doubted, that if the officer have legal process to execute and voluntarily abuse and pervert it to other purposes, he is not only a trespasser in that act, but becomes one ab initio, and is thus liable for all, that he has done under the process. This has been familiar Jaw since the time of the Six Carpenters’ Case, 8 Co. R. 146.
And the same is true of the right of entry claimed, to look after Paine’s goods. It was matter of fact, whether any such entry, for any such purpose, were really made. Both of these points, it seems to us, were properly left to the jury, and under proper instructions, so far as there was testimony in the case. In regard to the entry under the search warrant the officer did not claim to so enter.
The question of possession, too, was mainly one of fact; but the facts, as detailed in the bill of exceptions, seem fully to justify the verdict. The charge upon this point seems unobjectionable.
The statement of the defendant, before the entry, that he had got a place fixed for Lawton, so far as it had reference to the entry, for *529which the plaintiff recovered damages, and tended to show, whether it was bona fide, was proper enough to be considered in estimating damages; and beyond that the jury were told not to consider it. The trial seems correct; possibly the damages might with propriety have been less; that is not a matter of which we are permitted to judge, or of which, in this court, we have the means of forming any correct estimate.
Judgment affirmed.