Parker, C. J.
The plaintiff, having put in evidence the original taking as a trespass, must rely on that, or some part of it, to support the action. No more than one distinct trespass can be proved under one count, unless it be in cases where the plaintiff declares with a continuando, or alleges the acts to have been done on divers days and times. 1 Chitty Pl. 384; 1 Wm. Saund. L. 24, note 1; 4 N. H. 345.
The original taking, if it stood alone, would be justified. Where goods are seized by virtue of several warrants, some legal and some illegal, the naked seizure may be justified by the legal warrants, although more was seized than was necessary for the purposes of the legal warrants. 3 N. H. 20.
Whoever abuses an authority derived from the law, thereby becomes a trespasser from the beginning ; but it is otherwise where the authority is derived from a party. In such case the action should be trover. 14 Maine 47 ; 8 Coke 146.
A person assisting an officer in a legal service of a legal process, will not become a trespasser by a subsequent abuse of his authority by the officer. 12 Mass. 506. But if he unite in the abuse, he may be equally liable.
The sale of the remainder of the property in this case, after the process was satisfied, amounted to a conversion of the property sold. 8 Pick. 440; 7 Mass. 123. And as this was done by direction of the defendant, he may be liable for it. Possibly it might be regarded as an abuse which would vitiate - the whole proceedings from the beginning.
But the plaintiff can not, after having elected to treat the original taking as the trespass for which he brought his action, where that is justified, give evidence of another and distinct act of wrong or trespass. That is not in avoidance of the evidence offered by the defendant, but is another cause of action, making therefore a new case.
New trial.