#### Jonathan Phillips and Another *versus*Edmund Bridge.

Of the competency of an attorney, as a witness for his client, and Of the liability of a sheriff for the misconduct of his deputies.

[An attorney in the cause is a competent witness to prove the delivery of the execution and instructions to the officer in due time and manner to charge him. The officer is supposed to have in his custody all goods and chattels attached on *mesne*process until thirty days after judgment in the action, and if he part with them it will be at his peril. And a delivery of the execution to the officer will be unnecessary if the property is carried away so that he cannot levy upon it]

This was an action of the case against the defendant, who was at the time of its commencement sheriff of this county, for a supposed default of one of his deputies, in not causing to be satisfied, out of the goods and chattels of one *Enoch Jones,*an execution obtained against him by the present plaintiffs, upon a judgment recovered by them at the Court of Common Pleas in January, 1809.

The declaration originally alleged the liability of the defendant to have arisen from the neglect of *HezeJciah Wyman,*his deputy ; and a new count, which was filed by leave of * the Court, after objection by the defendant’s counsel, [ * 243 ] charges the defendant with having neglected to satisfy the execution, and with having falsely certified that he returned the same unsatisfied by order 'of the creditor’s attorney.

The cause was tried upon the general issue, September term, '812, before *Thatcher,*J.

The facts, as reported by the judge, are, that the writ of at *226tachment, on which the plaintiffs’ judgment was founded, was served on the 20th day of April, 1808, by *John O. Webster.*then a deputy of the defendant, who attached a ship belonging to the judgment debtor, and made due return of the attachment upon the writ.

It then appeared, by the testimony of *H. W.*Fuller, Esq., of the firm of *Whihvell ¡ty Fuller,*who were the attorneys of the plaintiffs in that suit, (Mr. *Fuller*being objected to by the defendant, as an interested witness, and the objection being overruled by the judge,) that *Webster*had taken a receipt for the ship of some person at *Bath,*where the ship lay at *the*time she was attached, and that she was permitted to remain in the possession of *Jones,*the defendant in the suit; that he, the witness, a short time before judgment was recovered, requested of *Webster,*who had then removed to *Portland,*in the county of *Cumberland,*to deliver him the receipt which he had taken for the ship, which *Webster*declined doing; but agreed to meet the witness at *Bath*on the 23d of January then next, at which time and place the witness was to have the execution ; that he, the witness, was at *Bath*at the time appointed, but the said *Webster*did not appear; whereupon the witness wrote to *Webster,*and informed him that he had left the execution with a Mr. *Stearns,*of *Bath;*but after writing the letter he concluded to leave the execution with *Wyman,*ana ther deputy of the defendant, and desired *Stearns*to inform *Webstar*of this arrangement, when he should come to *Bath*to serve the execution. The directions given by Mr. *Fuller*to *Wytnan*were, if *Webster*called for the execution, to take the receipt and demand the ship of the receipter, or to give the execution to *Webster.*

[ * 244 ] * Within thirty days after the rendition of judgment, *Webster*was at *Bath,*and applied to *Stearns*for the execution, as directed in Mr. *Fuller’s*letter to him; but it did not appear that he received any information from *Stearns,*or that *Wyman,*who held the execution, knew of *Webster’s*being at *Bath,*or that he had seen the receipt, or knew who had signed it.

*Wyman,*

upon receiving the execution from Mr. *Fuller,*took written directions “ to take the receipt and demand the property attached, and to inform the creditor’s attorney; ” and afterwards, on the same day, further directions, if the ship was delivered up, to sell it immediately.

It appeared further in evidence that the ship was sent to sea by the judgment debtor, before judgment was rendered, and that she had never returned. There had been a previous attachment of the ship in favor of Messrs. *Otis Sy Dwight,*merchants of *Boston,*and the judgment obtained in that suit had been paid and satisfied bj *227*W. King,*Esq., who had receipted for the ship on that attachment; and the ship remained in the possession of the judgment debtors when she was attached by the present plaintiffs ; and in two subsequent suits, she was attached for demands against *Jones Noyes,*when *Wm. Webb*was the receiptor; but the ship still remained in the possession of *Jones*and his partner *Noyes*until she sailed.

*Wyman,*on the 21st of April, 1809, returned upon the execution that he could not find any property of said *Jones,*&c.; therefore, by order of the creditor’s attorney, he returned the execution in no part satisfied.

The defendant’s counsel contended, at the trial, that, upon the facts proved, the plaintiffs were not entitled by law to maintain their action. But the judge gave his opinion that they were entitled to a verdict in their favor. The defendant’s counsel then offered in evidence an attested copy of a mortgage deed from *Jones*to the plaintiffs, executed before the commencement of their action against him, as collateral security for the note sued in that action; and contended that, if the plaintiffs were entitled to recover, such mortgage was good evidence in mitigation of damages ; but * the judge rejected the evidence as inadmissible, and [ * 245 ] thereupon, a verdict being returned for the plaintiffs, the defendant’s counsel filed exceptions to the said opinion and directions of the judge.

The cause was argued upon the said exceptions, at the last June term in this county, by *Lee*and *Mellen*for the defendant, and by *Wilde*for the plaintiffs.

*For the defendant,*

it was urged that Mr. *Fuller*was an interested and incompetent witness. His testimony went to prove the delivery of the execution to the officer within thirty days from the judgment. If it was not so delivered, he was liable himself to the plaintiffs for his neglect; if it was so delivered, he is exculpated.

The two attachments subsequent to that by the plaintiffs, being for debts due from the firm of *Jones Sf Noyes,*those debts were to be satisfied before the property attached was liable to the suit of the plaintiffs. (1) The verdict in this case, being for the whole demand of the plaintiffs in their original suit, ought to be reduced to the value of the ship after deducting those attachments which were in effect a prior lien ; and the plaintiffs should have postponed their judgment until the other creditors obtained theirs. (2)

But the plaintiffs, by the conduct of their attorney, have, in effect, discharged or excused the defendant. *Webster*made the attach*228ment, and the receipt remained with him. The execution was delivered to *Wyman,*who never saw the receipt, noi knew who had it He knew nothing of *Webster’s*being at *Bath,*and therefore could not demand the receipt of him. Had the execution been seasonably delivered to *Webster,*there would have been no question of his liability. He was not bound to deliver the receipt to Mr. *Fuller,*since it was his own security. He was under no official obligation to come to *Bath.*If he so promised, the plaintiffs may sue him for his breach of promise. But Mr. *Fuller*waived the plaintiffs’ claim, by undertaking to leave the execution with *Stearns,*and actually leaving it with another.

[ * 246 ] * The leave given by the judge to file the new count was going beyond all precedent. The original count alleged the default to be in *Wyman*and *Webster*according to the facts. If judgment be rendered on the new general count, the defendant will be without remedy. As he will not be able to show on whose misfeasance the judgment is founded, he can call upon neither of them for indemnity. The real objection on this point, however, seems to be to the new count generally, or to the admission of the evidence under it.

The opinion of the Court was delivered at this term by

(1)

6 *Mass. Rep.*242, *Pierce*vs. Jackson.

(2)

7 *Mass. Rep.*71, *Barnard*vs. Fisher.

Parker, J.

The first question made by the defendant’s counsel is upon the competency of Mr. *Fuller*as a witness; without whose testimony there would be no evidence of the delivery of the plaintiffs’ execution to any officer. This objection was taken at the trial, and, being overruled, the question is saved by the exceptions.

The incompetency of the witness is made to rest upon his liability, with his partner, to answer to the creditor for negligence in not delivering the execution seasonably to the sheriff or his deputy, in case the present suit is not maintained against the sheriff.

We are of opinion that this supposed liability does not affect'his competency; but he must be considered in the light of an agent, whose responsibility may affect his credit only with the jury, *(a)***The circumstance of his having endorsed the writ in the former action was adverted to. But this, not rendering him liable for the costs in the present suit, does not affect his competency.

It was also objected' that the new count ought not to have been received, because it changes the nature of the defence.

But there is no difference in the real grounds of the action. In the original count the defendant had notice of the particular facts, upon which the plaintiffs intended to charge him; and in the new count he is charged generally; but he must have known that it wag *229through the instrumentality of his deputy, that he had become liable, if liable at all. *(a)*

***These preliminary questions being thus disposed [ * 247 ] of, we have now to consider whether, the facts proved constitute a legal ground of action against the sheriff.

The attachment of the ship by the defendant’s deputy, *Webster,*made him liable at all events for the value of that property, provided the plaintiffs were diligent in obtaining their judgment and execution, and delivering the latter to the officer who made the attachment, or to any other deputy of the same sheriff, or to the sheriff himself, unless, by some fault of the plaintiffs, they were unable to come at the property attached seasonably to serve the execution.

The creditor is no party to the receipt given for chattels attached, nor has he any interest in the contract made with the receiptor, who is responsible only to the officer ; unless the creditor has consented that the property attached should be delivered up to the debtor, or remain in his hands after the attachment; which is not suggested to have been the case in this instance. The officer is supposed to have in his own custody all goods and chattels attached upon mesne process during the pendency of the action, and until thirty days after judgment rendered; and if any loss happens in consequence of his bargains with the debtor, he must be the loser, for he parts with the property at his peril, *(b)*

*Webster,*therefore, by his return on the writ, had bound himself to levy the plaintiffs’ execution upon the ship attached, or to respond for her value if she could not be found. If he permitted the debtor to keep possession of her, and send her to sea, he must hazard all the consequences, and depend only on the contract he may have made with the friends of the debtor to indemnify him. In the case of a vessel, a receipt, with a promise to deliver it when wanted to satisfy the execution, can generally amount to nothing more than a promise to indemnify the officer for parting with property which he is bound by law to keep to satisfy a debt. For the object of such an interference is to send the vessel to sea; and even if she should return before execution is delivered to the officer, the probable diminution of * her value might still render [ * 248 ] the attaching officer liable in damages.

Before judgment was rendered, *Webster*had an opportunity to *230discharge himself, by delivering to the attorney of the creditors the receipt for the ship. For if he had delivered it when requested by Mr. *Fuller,*and by any loches of this latter, the receiptor had been discharged, doubtless the claim of the plaintiffs upon *Webster*would have been defeated. But he agreed to be at *Bath*on the 23d of January, and there receive the execution, and cause it to be satisfied. He did not appear, however; and if he had, the vessel being gone to sea, a demand upon the receiptor would have been fruitless, as it respected the execution. The creditor’s right of action would have been established against *Webster*or the sheriff, and they must have looked to the person who had received the vessel. The nonperformance of this agreement to meet Mr. *Fuller*at *Bath*restored the liability of *Webster*for permitting the ship, which he had attached, to be removed, so that the execution could not be levied upon *it;*it being an agreed fact that the ship was not then within the precinct of the sheriff, and uncertain whether she had not been destroyed by the perils of the sea. The demand of the receipt, made by Mr. *Fuller,*when *Webster*had removed out of the county, was sufficient to put the latter upon his guard to call upon the receiptor, and to secure himself.

An actual delivery of the execution to *Webster*was not necessary to continue his liability ; for there was nothing upon which it could be levied; and the injury to the plaintiffs accrued when the ship was restored to the debtor.

But the execution was delivered seasonably to *Wyman,*another deputy, and had the ship been at *Bath,*where she had been attached, or any where within the body of the county, and within the control of the sheriff, she might have been seized by him upon the execution.

But it was argued, by the counsel for the defendant, that, when *Webster*called upon *Stearns*for the execution, and [ * 249 ] * could not get it, nor any information with whom it was left, he was released from any responsibility, not having it in his power to levy the execution.

This, however, is no excuse for him. If he had obtained the execution, he could have done nothing with it. He had possession of the receipt, and could have called upon the receiptor, as well without the execution as with it. At any rate, after having failed in his first engagement, it was his duty to have gone to the attorneys of the creditor for instruction. He knew that judgment had been rendered, and that execution was to have issued before the 23d of January; and he had information by letter that it had issued. He might also have looked up his brother deputy, *Wyman,*living in the same town where ffie ship ought to have been found; and he would *231then have found the execution. But he appears to have been utterly careless of the event, probably relying altogether upon the receipt which he had taken for the ship.

With respect to the prior attachment at the suit of *Otis If Dwight,*it can in no respect affect this question. The attachment in that case, as in this, was merely formal, the ship never having gone out of the possession of the debtor. No lien is created by such fictitious attachments; and this second attachment, if it had been effectual, and the ship kept by the officer, would have superseded the former, even if *Otis fy Dwight*had afterwards attempted to levy their execution upon the ship, *(a)*

With regard to the subsequent attachments made by creditors of *Jones Noyes,*this is a mere question of damages. It having been decided that a second attachment upon property belonging to a company, for a debt of the company, should take place of a prior attachment upon the same property, made by a creditor of one of them, it would seem reasonable that, if the plaintiffs could have availed themselves only of the surplus, after paying the joint debts, if the ship had remained in custody to be sold upon their execution, they should recover no more of the sheriff than they * have lost by his neglect of duty. It would seem, also, [ * 250 ] that the interest of *Noyes*in the ship could not have been taken to satisfy the debt of *Jones*alone; so that, if one half of the ship was of less value than the sum recovered in damages, or if, after deducting the amount of the judgments recovered by the creditors of the company, there would not have been so much left as the amount of the present verdict, there ought to be a new trial. (b)

In order to save the expense of another trial, let there be affi davits of the value of the ship in January, *1809;*and if it shall appear that there was sufficient interest in the ship liable to the demand of the plaintiffs, judgment is to be entered upon the verdict.

(a)

*Fisher*vs. *Willard,*13 *Mass. Rep.*379.

(a)

*Haynes*vs. *Morgan,*3 Mass. *Rep.*208. — *Ball*vs. *Claffin,*5 *Pick.*303. — *Stone*vs. *Swift,*4 *Pick.*389. — *Swan & Al.*vs. *Nesmith & Al. 7 Pick.*220. — *Tenny*vs. *Prince,*4 *Pick.*385. — *White*vs. *Snell,*5 *Pick.*425. — *Eaton*vs. *Whitaker,*6 *Mass Rep.*465. — *Clark*vs. *Lamb,*6 *Pick.*512.

(b)

*Tyler*vs. *Ulmer,*12 *Mass. Rep.*163. — *Congdon*vs. *Cooper,*15 *Mass. Rep.*10

(a)

*Lane & Al.*vs. *Jackson,*5 *Mass. Rep.*157.— *Train*vs. *Wellington,*12 *Mass Rep.*495. — *Lyman*vs. *Lyman,*post, 317. — *Knapp*vs. *Sprague,*9 *Mass. Rep.*258. — *Vinton*vs. *Bradford,*13 *Mass. Rep.*114.

(b)

*Pierce*vs. *Jackson, 6 Mass. Rep.*242. *—Fisk*& *Al.*vs. *Herrick and Trustees,*6 *Mass. Rep.*271.— *Goodwin*vs. *Richardson,*post, 469. — *Rite*vs. *Austin,*17 *Mass. Rep.*197. — *Lord*vs. *Baldwin,*6 *Pick.*349. *—Adams & Al.*vs. *Page,*7 *Mass. Rep.*542.