WALSH v. BROWN

Trespass. Officer. Attachment. Bond. Waiver. If an officer in the service of a writ authorizing him to attach the goods and estate of a certain person enters a lunch room owned and maintained by that person and kept open night and day, and, after making an attachment of goods found therein and putting a keeper in charge, proceeds to put a lock and staple on the door and, for a period of eighteen hours, to exclude the proprietor whose goods he has attached and his servants and also customers wishing to enter, such acts of exclusion are in excess of his authority and make him a trespasser ab initio.

If an officer authorized to make an attachment after making the attachment exceeds his authority and thereby becomes a trespasser ab initio, the person whose goods he has attached does not waive the trespass by giving a bond to dissolve the attachment, and after doing so still has a right of action against the officer.

Semble, that a bond to pay a judgment, given under R.L.c. 167, § 116, to dissolve an attachment, is valid and binding even if the attachment was not effective.

HAMMOND, J.

The defendant, a constable in the city of Boston, received a writ sued out by one Mahoney against Susan E. Walsh, the plaintiff in this action. The writ instructed him to attach the goods and estate of the said Walsh, to the amount of $110. Armed with this document he proceeded to a lunch room owned and kept by her but under the immediate management of her husband, and, as stated in his return, attached "certain goods and chattels . . . placed a keeper over said property and took from cash register $12.93." Neither in his return nor in the evidence at this trial is there any more specific description of the goods and chattels which were attached. If the officer had stopped there perhaps he would have been justified by his writ taken in connection with the provisions of R.L.c. 167, § 43. But he did not stop there. There was evidence that the store was "run night and day." It appeared that the defendant "ordered the husband of the plaintiff and her employee out of the store in the evening, and put a lock and staple on the door leaving the keeper therein during the night." From some time in the early evening of the day of the attachment until ten or eleven o'clock the next forenoon, he kept the store locked up and prevented all access to it. There was evidence also that before the closing of the store he forcibly prevented customers from coming in. Against the exclusion of the customers, the closing of the store and the exclusion of the husband and servants of the plaintiff, the plaintiff, through her husband, protested, but finally yielded.

It is plain that in these various acts of exclusion and in the locking up of the store the defendant went beyond the authority of his writ and of the statute above named; and no citation of authorities is needed in support of the proposition that such a public officer exceeding his authority becomes a trespasser ab initio. The third and fourth requests should have been given. The trespass was not waived by the subsequent giving of a bond to dissolve the attachment. The bond is not before us, but we assume it to be the statute bond to pay the judgment, and that it is good whether or not there has been any substantial attachment. The defendant in the writ may have preferred in that way to avoid all further trouble about the possession of her store, but it cannot be held to estop her from a claim for damages as to the past trespasses. There being evidence of a trespass the plaintiff had a right to go to a jury.

Since the exceptions must be sustained upon this ground it is unnecessary now to consider the exception concerning the filing of the writ.

Exceptions sustained.