The questions made in this case in relation to the validity of the attachment, and the regularity of the judgment in favor of Merriam against the plaintiff, have already been decided at the present term, in the case of Collins v. Merriam.
The using, or allowing property to be used by an officer holding the same under attachment, is ordinarily considered such an abuse of the officer’s authority as to make him a trespasser ab initio. It would seem from the exceptions that the use in the present case was slight, and it is not stated whether it was with the knowledge or consent of the officer, but the county court held it was enough to make the defendant a trespasser ab initio, and put an end to his right under the attachment. The plaintiff has no ground to complain of the decision below in this respect.
This finding would of course entitle the plaintiff to recover the value of the property of the defendant, unless he subsequently received back the property, or the same was legally disposed of for his benefit. If either of these were done, it would go properly in mitigation of damages.
The defendant claims that all the property, except the oxen, was subsequently legally disposed of upon the execution in favor of Merriam against the plaintiff, and if this were so, it would be the same as if he had received back the property, and the plaintiff could only recover such damages as he sustained, and not the full value of the property; see Yale v. Saunders, 16 Vt. 243; Stewart v. Martin, id. 397, and cases cited by Williams, Ch. J., in the latter case.
The plaintiff makes three objections to the validity of the sale of the property by the defendant on Merriam’s execution.
1. That the return does not show that he made demand of the plaintiff to pay the execution before proceeding to levy.
2. That the return shows the levy to have been in Rutland and the sale in Mendon.
3. That the return does not show that the property was advertised at the same place where it was sold.
*629It was decided in the case of Dow v. Smith, 6 Vt. 519, that the provision of the statute requiring the officer to make a demand of payment of the debtor before proceeding to levy, was directory merely, and the want of it did not invalidate the levy. The same was held in relation to a levy on real estate, in Eastman v. Curtis, 4 Vt. 616, though the statute form of a levy states a demand and neglect to pay. These decisions have ever since been followed.
Sec. 4, chap. 45, Comp. Stat. provides that the officer holding an execution for collection, shall advertize the property so taken, “ by setting up at some public place in the town where such goods or chattels were taken, a notification, etc.”
The defendant’s return on the execution is dated at its commencement, at Rutland, and though he does not say that he levied on the property in Rutland, perhaps that is the fair and natural meaning. Whether the actual sale of property by an officer in a different town from that where the property was originally taken, and without the consent of the debtor, would make the sale void and the officer a trespasser, we do not find it necessary to decide. In the present case it appears the plaintiff resided in Mendon, and the property was attached there by the defendant. The probability is, that the defendant kept the property after the attachment and before the sale, in Rutland. When the property is originally taken by attachment in the town where the debtor lives, it would seem to be a far better compliance with the meaning and spirit of the statute, to require the sale on the execution to be there, than to hold that if the property was taken into another town to keep while under attachment, and levied upon there, the sale must be where the levy was made. The plaintiff would in the latter case have much better ground to complain than he has now.
The defendant’s return on the execution states, that he advervised the property to be sold at public auction, at Harvey Wilkins’, in Mendon, etc. The return does not state in terms, that the notification was set up at Wilkins’, but such we think is its fair and natural meaning, and under the liberal rule of presumption that has obtained in the interpretation of officers’ returns, and the validity and rightfulness of their official acts, this return shows a compliance with the statute.
*630The plaintiff claims also, that these proceedings can not be proved or taken advantage of by the defendant, even in mitigation of damages, under the general issue, but should have been specially pleaded. It is true that in this State the rule requiring special justifications to be pleaded in actions of trespass, has been adhered to with great strictness. At the recent term in Chittenden, County it was decided that when the plaintiff’s proof showed a full legal justification of the trespass by the defendant, the defendant could not take advantage of it under the general issue.* This certainly goes to the very extreme. But it by no means follows, that it can not be shown to mitigate the damages without being pleaded. If it had been pleaded, and pleaded truly, if would have have been no legal justification, and it would be singular to require a party to plead an insufficient justification in order to use the same facts as evidence in mitigation. It would hardly be claimed that a defendant could not show, even under the general issue, that the plaintiff had received back the property in reduction' of the damages, without setting it up by special plea, but this is the same thing.
The general property in the oxen at the time they were taken, was in the defendant, by purchase from Merriam. The defendant had a right by his contract with Merriam, to become the owner of them by paying the sum of one hundred dollars. The time within which he was to make payment had nearly expired, he had paid nothing, and it is quite evident from the facts found, that he did not expect or intend to pay for them, and the court below found that he had not kept or used them in accordance with the contract, and that the cattle were not worth then as much as the plaintiff was to pay for them, by the sum of twenty-five dollars.
The question is not properly presented here, whether the defendant or Merriam would have been justified in taking the cattle away from the plaintiff, in consequence of his violation of the terms of the contract as to the proper keeping and use of them; as the court below held they could not, and the plaintiff can not complain of that. The county court held that the plaintiff was entitled to recover for what the use of the oxen would *631be worth till the contract expired. It is not claimed that the plaintiff could have suffered any other loss by their being taken away before the expiration of the contract.
"We do not see how the case is to be affected by the fact that the defendant took the oxen as an officer, and included them, or the defendant’s interest in them, in his return on the writ. This could not make it more than an illegal and tortious taking, and this the court held it to be.
We think the judgment below was in all respects correct, and the same is affirmed.
Briggs v. Mason et al., ante p. 433.