Wilcox, J.
The property was taken on the 11th of September, 1846. The defendant was appointed a constable on the 30th of May preceding ; but his appointment was signed by one only of the selectmen, although it purports to be signed by two, and no bond appears to have been given. He was, therefore, not qualified to perform any duty of his office. He was reappointed on the 30th day of September, 1846, and gave bonds pursuant to law to the town and to the county. In March, 1847, the defendant was duly elected a constable, took the oath of office, and gave bonds pursuant to law. This was subsequent to the commencement of this suit.
The defendant introduced sundry writs against the plaintiff which had been placed in his hands for service, and upon which he made attachments of the plaintiff’s goods prior to the 30th of September, 1846 ; all of which writs, but one, were returnable to the court of common pleas. Upon one of these .writs, returnable to the Court of Common Pleas, there was a sale of property, at the application of the creditor, in October; and upon the writ not returnable to the Court of Common Pleas there was a separate attachment of property in September, prior to the time of the second appointment to office, and an application of the proceeds to the amount of $10.44 in payment of the judgment obtained. This was also in October.
After the defendant’s second appointment, he received other writs, and attached the same property subject to the first attachments. After his election in March, 1847, the executions came into his hands, and, having - previously sold the property, he applied the avails upon the executions in the order of the attachments.
On the 21st day of November the plaintiff signed an agreement, consenting that all the property attached by the defendant as constable should be sold, and the proceeds applied towards the payment of the debts, one and a half tons of hay excepted ; and this is a bar to any action for anything done under such license, whether the defendant was a constable or not.
This shows an application of the property to the plaintiff’s use, with his consent; and if the plaintiff had taken the property unlawfully, he is answerable only for the damage resulting from the taking and detaining until the license. This covers all the property, including that which was exempt from attachment, except the ton and a half of hay. The plaintiff, therefore, can recover damages only for the detention of the property. He has had the benefit of it. It is the same thing in effect as if he had received back the property in specie from the defendant, and then brought his action, which of course would not entitle him to any further damages than he had sustained by the detention.
It is doubtful whether the defendant’s omission to make a sufficient return, or to make any return at all, renders his acts illegal and himself a trespasser ab initio ; provided his acts were such as would have been legal if sufficiently returned. Parker v. Pattee, 4 N. H. 530 ; Smith v. Moore, Grafton, 1845 ; Young v. Rand, Strafford, July, 1847. But the difficulty may be removed by an amendment of the return, if thought necessary.
The original taking of the property, prior to the 30th of September, 1846, by writs returnable to the Court of Common Pleas, is not justified; nor does the agreement of the plaintiff, made on the 21st of November, extend or propose to extend so far as to discharge any claim which the plaintiff had for that injury. It is not a release; it does not purport to be one; it was not under seal, and was without consideration. It is, therefore, as a reception of the property taken would have been, wholly inoperative as a justification of the taking, or a satisfaction for the unjustifiable act. But for the subsequent acts of appropriating the avails of the sales in the manner in which that act was executed by the defendant, the agreement affords a perfect justification.
In that sale of the property and application of its avails, he acted, also, under the protection of a valid appointment to the office of constable, and qualification according to law. While he held the money as constable, or under the license, the executions having been delivered to him, he proceeded under them, and in so doing appears to have pursued the license also ; which was, to sell and apply the proceeds to the payment of the just claims of the attaching creditors. Judgments obtained in the actions in which the attachments referred to were made, were safe and proper indications to the defendant in executing the fiduciary terms of the license, as to what claims were just. In either capacity, whether of an officer or of a trustee of the plaintiff’s appointment, the defendant appears to have been justified in the disposition of the money.
The sale of the property upon the writ, in October, seems also to have been well. At that time the defendant was an officer de jure, and the property being in his hands, the attachment became valid by the events which consummated his official appointment and qualification. If, however, it were otherwise, the license appears to have been pursued by him in good faith, and the property was, by the consent of the plaintiff, applied to his use.
The defendant is liable only for the detention of the property. The verdict cannot be so amended as to meet this view of the case, and must, therefore, be set aside and a
New trial granted.