. Thacher here seems to be citing Leglise v. Champante, 2 Str.
820, 93 Eng. Rep.
1728) where in an action at law against a customs officer for the seizure of goods
which the Exchequer had found not liable to forfeiture, “it was held, that in these
cases the officer seizes at his peril, and that a probable cause is no defense.” The
authority of this case is cast in doubt by the statute, 19 Geo. 2, c. 34, §16 (1746),
continued to 29 Sept. 1764 by 32 Geo. 2, c. 18, §1 (1759), which made a court's certification
of probable cause a bar to any suit against the seizing officer. See 12 Viner, Abridgment
173. It seems to have been well established in England, however, that in case of
a wrongful search as distinct from a wrongful seizure, probable cause was not a defense
to an action, even when the search had been carried out by virtue of a writ of assistance.
See authorities cited in Quincy, Reports (Appendix)
533–534 note. These cases were all decided after 1761, but even if this had clearly
been the rule when Thacher argued, it would seem to cut against his position, since
it demonstrates that the power given by the writ could be curbed by the courts.