¶1The attachment under which the goods in question were taken and held by the sheriff, was set aside by the Superior Court of the city of New York for irregularity. I incline to the opinion that the attachment was a nullity on account of the court, out of which it was issued, having no authority to issue such a process. But I have not examined that question, because, conceding it to have been issued by proper authority in respect to jurisdiction, still it having been set aside as irregular, it afforded no justification afterwards for acts previously done under it, to the party in whose favor it was issued. If issued by competent authority, and regular upon its face, it might afford protection to the officer for his acts previously done under it, but none whatever to the party. As to him, it was then, as though no process whatever had been issued, and the goods had been taken and detained by his order without any process. (Chapman v.Dyett,11 Wend. 31; Smith v. Shaw,12 John. 257; Hayden v. Shad,11 Mass. Rep. 500; Codington v. Lloyd, 8 Adol. Ell. 449; Parsons v. Lloyd,2 Black. 845.) The moment it was set aside, the party became a trespasser ab initio.
¶2The return of the property in such a case only goes in mitigation of damages. It is no answer in bar of the action for the wrong. (Hanmer v. Wilsey,17 Wend. 91.) The officer in such a case is the agent or servant of the party in whose favor the process is issued, and the party is clearly liable for any injury to the goods caused by his negligent or careless acts while such goods are in his possession.
¶3The judgment should therefore be affirmed.
¶4All the Judges concurred.