#### Simeon C. Whittier *versus*Parsons Smith, Stephens Smith, and W. H. Page.

Of the property of sheriff in goods attached by him on mesne process.

[Where goods attached were delivered by the officer to a bailee, upon his receipt to redeliver them on demand, and before the return day of the writ were demanded by the officer, who thereupon returned an attachment of them upon another suit in favor of another creditor, although the goods were never redei livered to or seen by the officer after the bailment, but were taken in satisfaction of an execution upon a judgment recovered by the first attaching creditor in another suit, the first suit having been abandoned, —held, that an action by the officer against the bailee might be maintained:]

This action, which was case upon promises, the parties submitted to the decision of the Court upon the following statement of facts: —

The suit is founded on a promise contained in the following *197receipt, *viz.: “Hallowell,*1 January, 1811. Received of *Simeon C. Whittier,*deputy sheriff, the following articles, attached on a writ of attachment, dated December 31, 1810, in favor of *Parsons*and *Stephens Smith,*against *Bela Andrews,*returnable to the Court of Common Pleas next to be' holden at *Augusta,*in the county of *Kennebeck,*on the third Tuesday of May next, *to wit.*[Then follows a particular enumeration of the articles.] All which we promise to redeliver to said *Whittier*when called for.” Signed by the defendants.

On the 9th day of the same January, *Davenport fy Thayer*sued out their writ of attachment against the said ** Andrews,*returnable to the same term of the Com- [*212 ] mon Pleas, and delivered it to the plaintiff, he being a deputy sheriff of this county, with special directions written thereon to attach the goods mentioned in the above-described receipt, subject to the attachment then already made in favor of the said *P. If S. Smith.*

On the 12th day of the same January, the plaintiff, having *Davenport If Thayer’s*writ in his possession, called upon the defend ants with the said receipt, and demanded of them the goods mentioned therein, and informed them that he was about to attach the same on some other precept, but the witness does not recollect at whose suit; but the defendants refused to deliver them; and on the 14th day of the same January the present action was commenced.

Afterwards, on 'the 1st day of March, 1811, the said *P.*and *S. Smith*sued out a new writ of attachment against said *Andrews,*upon the same demand, which was the foundation of their former suit against him ; and by the force of this, their second writ, another deputy sheriff of this county, on the 2d day of the same March, attached and took the same goods into his possession.

*P.*and *S. Smith*never entered their action mentioned in the re ceipt, it being founded upon a promissory note not payable at the time the action was commenced.

The plaintiff returned on *Davenport &f Thayer’s*writ that he had attached the goods described in the receipt, subject to *P.*and S. *Smith’s*first attachment; whereupon *Davenport Of Thayer*entered the action, and afterwards recovered judgment against *Andrews*for 520 dollars, and, within thirty days after judgment, delivered their execution to the plaintiff, he continuing to be a deputy sheriff This execution the plaintiff returned unsatisfied, for a greater sum than the value of the goods receipted for by the defendants.

*P*and. *S. Smith*entered their second action, recovered judg ment, and caused the aforesaid goods to be sold towards its satisfaction. *198[*213] * The plaintiff made no other demand upon the defendants than that before mentioned; and never, after the receipt, had the goods in his actual possession, nor had he ever since seen them.

If, upon the foregoing statement, the Court should be of opinion that the plaintiff is entitled to judgment, the defendants were to be defaulted, and judgment made up by the Court as to damages and costs; otherwise the plaintiff was to become nonsuit, and the defendants to be allowed their costs.

*Warren,*for the plaintiff.

The plaintiff is liable to the suit of *Andrews,*for the gopds as first attached, and to the suit of *Davenport Thayer,*who had a right to demand of him a further attachment, at their suit, of the goods then legally in his possession. He is not obliged to wait until there is a recovery against him, before he can maintain an action against the defendants. His remedy by that time may be fruitless. He had a special property in the goods, and it is not for the defendants to object that he has yet lost nothing in consequence of their breach of promise. (1)

*Wilde,*for the defendants.

All the plaintiff’s property in the goods under the first attachment was in right of the defendants *P.*and *S. Smith,*and for their interest and benefit. He held them also subject to the claim of *Andrews,*in case the first suit should terminate in his favor. But he has no claim on the defendants in right of *Andrews,*because all the goods have been since taken and applied to the payment of his debt. The attaching creditors can never sue him, because they have themselves taken the same goods. *Davenport If Thayer*have no claims upon him, because the goods were not in fact attached on their suit. If the defendants had returned the goods to *Andrews,*and then attached them on their second writ, neither the plaintiff, nor any one else, would have had ground to complain ; and yet in that case the eventual appropriation of the goods would have been the same as in the present case. The plaintiff’s return on *Davenport &f Thayer's*writ was [ *214 ] false; * and he cannot acquire a right of action from his own false return.

(1)

5 *Mass Rep.*274, *Watson & Al.*vs. *Todd & Al.*

Sewall, C. J.,

delivered the opinion of the Court.

The defendants are charged, in an action of *assumpsit,*upon a promise in writing made to the plaintiff. The writing shown in evidence is dated January 1, 1811; and the defendants thereby acknowledge to have received of the plaintiff, a deputy sheriff, certain articles afterwards enumerated, “ attached on a writ of attachment, dated December 31, 1810, in favor of *Parsons*and *Stephens Smith.**199[two of the defendants,] against *Bela Andrews,*returnable to the Court of Common Pleas next to be holden, &c., all which they promise to redeliver to the plaintiff when called for.”

The plaintiff proves also a demand of these goods afterwards, that is, about five days after the date of the receipt, when the defendants refused to deliver or produce the goods, or any part of them. This demand was accompanied with information to the defendants that the plaintiff intended a further -attachment of the same goods upon another precept; but it is not stated that any other precept was then produced, or that the defendants were noti fled, whose demand against *Andrews,*or to what amount, was to be enforced by another attachment of the goods which had been de livered to the defendants upon their receipt and promise. It is, however, agreed by the parties, and admitted as proved, that the plaintiff had, at the time of his demand of the articles in question from the defendants, a writ against *Andrews,*which authorized an attachment of his goods and estate at the suit of *Davenport fy Thayer,*and that the plaintiff returned the goods enumerated in the receipt of the defendants, as attached upon that writ; that this writ was pursued to judgment, and that *Davenport 8f Thayer*recovered therein against *Andrews*a sum exceeding the value of the goods supposed to have been attached, subject to the prior attachment thereof at the suit of *P.*and *S. Smith.*

It is also admitted, as a fact proved, that the first action, in which the attachment was made by the plaintiff, was not * pursued, having been commenced upon a demand not [ * 215 ] then due; and that *P.*and *S. Smith*afterwards commenced another action for the same demand, by a writ upon which they caused the same goods to be attached by another deputy of the same sheriff.

The facts proved and admitted in this case maintain the action for the plaintiff, so far at least as to establish a promise, and a breach of it, on the part of the defendants. .

The promise is explicit, and requires no construction. The plaintiff had, at least, a special property in the goods attached, according to the nature of his office and authority. He was accountable to *Andrews,*the general owner of the goods attached, until the determination of his property and interest by the effect of the process. As this was not pursued, as soon as the pledge obtained by the attachment for *P.*and *S. Smith*was relinquished, the right of *Andrews*to a redelivery of the goods became absolute. The refusal of the defendants to deliver the goods, according to their promise, vested in the plaintiff a right of action to the value of those goods.

*200Whether, therefore, under the circumstances of this case, the attachment intended to be made at the suit of *Davenport f Thayer*was, or was not, effectual, is not a question to be settled between the parties in this action. If it was not, it is no excuse for the defendants, and no defence against the demand of the plaintiff, arising upon their breach of promise, sufficiently alleged and proved. The subsequent attachment, at the suit of two of the defendants, is no answer or defence, either as to the right of action, or in mitigation of damages.

Evidence of a special property in the plaintiff and a delivery or satisfaction to his bailor, or the party entitled to the general property, might be a sufficient answer, or would at least be admissible evidence in mitigation of damages. (2) But there is no evidence to this effect; and it is admitted that the defendants did not act for *Andrews,*in receipting for the goods attached. They [ * 216 ] are not to be considered * as bail for him, at his request dissolving the attachment. The goods were not delivered to him, nor retained by the defendants for his account and use, by any authority from him. And whether the goods have finally availed to his use, in consequence of the subsequent attachment at the suit of two of the defendants, and the sale upon their judgment and execution against him, is not an inquiry which can be gone into in this action, and between these parties. The proceedings and judgment in that action are no evidence against this plaintiff; nor would they be evidence for him against *Andrews ;*certainly not conclusive evidence, if the plaintiff, or the sheriff, upon his responsibility, were charged in an action by *Andrews,*for the goods attached upon a process which had not been pursued to judgment.

Upon the whole, an explicit promise by the defendants is proved, and a plain breach of it; against which they have not defended themselves, by showing the indirect and improper purposes with which they have acted in disposing of the goods of a third person, respecting which they had no agency or authority from the owner, nor any general or special property in themselves. (a)

*Defendants def aulted.*

(2)

 2 *Rol. Abr.*551, *1,*31.—Ibid. 569, 1, 22.

(a)

 See *Knapp*vs. *Sprague,*9 *Mass. Rep.*262, and cases cited in note. — *Bagley*vs. *White,*4 *Pick.*395.