#### Gilman White *versus*Philip Bagley.

A, a deputy sheriff, attached certain goods as the property of B; C, a coroner, afterward attached and took possession of the same goods in another suit against B, on the ground that A had abandoned his attachment. A then brought *trover*against C for the goods. While this action was pending, the creditors in the suits in which A had made his attachment, recovered judgments against B, and put their executions into A’s hands, threatening to sue him unless he satisfied them, C then, at the request of A, and with the consent of the parties for whom C had attached, delivered the goods to A, A giving C a written agreement that he would pay to Cthe proceeds of the goods in case A should fail in his suit of trover. A .sold the goods by auction. Afterward C recovered judgment for costs against A in the action of trover, and immediately made a demand on A for the amount of the proceeds of the goods ; which A refused to pay. The creditors for whom C had attached afterward recovered judgment against B, and, within thirty days after, A was notified of it, and again requested to pay over the proceeds ; but the creditors did not take out execution within the thirty days. It was held, that A was liable to C on the agreement for the proceeds of the goods.

This was an action of *assumpsit*on a special contract At the trial, before *Putnam*J., at the November term, 1827, the following facts appeared in evidence. The defendant, as a deputy sheriff, in June, 1825, attached certain goods as the property of Bailey Bartlett of Newburyport, at the suit of divers creditors living in Boston. On July 25, 1825, the same goods were attached by White, as a coroner, at the suit of Ebenezer Stedman and Bailey Bartlett, sheriff of the county of Essex, against Bailey Bartlett of Newburyport. This attachment made by White was on the ground that Bagley had abandoned his previous attachment. Bagley then brought an action of *trover*against White. During the pendency of that action, the Boston creditors recovered judgment in their ac tions, and notified Bagley, that unless he satisfied the executions which they had placed in his hands against the debtor, issued on the judgments, they would forthwith commence actions against him. Bagley, not having the goods in his possession and being liable to the creditors, applied to White, Stedman, and Bartlett the sheriff, for permission to receive the goods then in possession of White under attachment, and to sell the same, and with the proceeds thereof discharge his liabilities to the Boston creditors. To this they consented, on Bagley’s first executing an agreement, with a sufficient suretv, *295o pay over the proceeds of the goods to White, in case Bagley should fail to recover judgment in the action of trover. The agreement was accordingly executed, and the goods were delivered to Bagley and sold by auction ; and on this agreement the prt sent suit is brought.

*Nov. 7th.*

In the action of trover, White recovered judgment against Bagley for costs, at the May term of this Court, 1826, (see *Bagley*v. White, 4 Pick. 395,) of which he was immediately notified, and requested to pay to White the amount of the proceeds of the goods. At the June term of the Common Pleas, 1826, Stedman, and Bartlett the sheriff, recovered judgment against Bartlett of Newburyport, and within thirty days of the time when the judgment was rendered, Bagley was notified thereof and again requested to pay White the amount of the judgment, it being 803 dollars 11 cents, or the proceeds of the goods ; which he refused. But Stedman and Bartlett did not take out execution on their judgment within thirty days from the time when it was rendered.

Judgment was to be rendered according to the opinion of the Court.

*Gerrish,*for the defendant,

contended that Stedman and Bartlett having neglected to take out their execution within thirty days, White lost his lien on the property which he had attached, and consequently could have no claim against Bagley on his agreement. The circumstance of Bagley’s having sold the goods cannot make him any more liable than if they remained in his hands in specie, White’s lien created by his attachment being equally lost in either cáse by lapse of time.

White ought not to prevail in this suit, because he is no longer responsible either to the attaching creditors, who have lost their right by neglecting to take out their execution, or to the debtor, who has already received the benefit of this property by its being applied to satisfy the other executions. If White should recover, he would be putting the money into his own pocket.

*Marston*and *Shillaber,*for the plaintiff.

This is not like the case of a common receipt given to a sheriff; for the goods were delivered, not to be kept and returned, but to be sold by Bagley, and not on the executions of the attaching *296creditors, but to discharge his personal liability to them arising out his neglect. White applied to Bagley to pay the proceeds of the goods within thirty days after the judgment in the case of Stedman and Bartlett; on Bagley’s refusal, White’s tight of action commenced. When the goods were delivered to Bagley, White’s attachment ceased, and judgment having been given in White’s favor in the action of trover, the condition on which Bagley was to become liable happened. The demand made on Bagley within the thirty days after the judg ment, was all that was necessary, to give the right of action against him. *Lyman*v. Lyman, 11 Mass. R. 317; *Phillips*v. Bridge, 11 Mass. R. 242. In *Cooper*v. Mowry, 16 Mass. R. 5, the Court say, that where an attaching officer “ has made strangers bailees, to whom the possession has been delivered, not for the purpose of delivering the chattels over to the debtor, he would have a right of action against the bailees,” even if no execution had issued within the thirty-days. They also cited *Tyler*v. Ulmer, 12 Mass. R. 163 , *Jenny*v. Rodman, 16 Mass. R. 464 ; *Webster*v. *Coffin,*14 Mass. R. 196.

The opinion of the Court was afterward drawn up by

Parker C. J.

We can see no reason why the plaintiff should not recover according to the terms of his contract, the contingency on which he promised to pay having happened.

It is no answer to say that Stedman and Bartlett, for whose use the money is to be paid, did not take out their execution within thirty days after recovery of their judgment. Had the goods been left with White upon his attachment, they might have been seized upon the execution after the thirty days, if no other attachment had interposed. And now, on receiving the money, White may satisfy that execution. While the suit was pending respecting the controverted rights of White and Bagley concerning the special property, it was useless to take out the execution. If it is now in the hands of White, he will discharge it on the receipt of the money, and if not, he will be liable to an action by Stedman and Bartlett, for he is their agent in receiving the money. Suppose instead of an action of trover and a judgment for costs in the action of *Bagley*v. White, the action had been replevin and a judgment for return, *297the goods on being returned to White would be seized 01 Stedman and' Bartlett’s execution. Notice to Bagley of the recovery of judgment by Stedman and Bartlett and a demand upon him for payment according to his contract, is quite sufficient to malee him liable to White, and there is no pretence for supposing that White can appropriate this money to his own use. The case of *Lyman*v. Lyman, 11 Mass. R. 317, is much like the case at bar.

*Judgment according to verdict.*