#### Nathaniel H. Whitaker *versus*Charles P. Sumner.

An attachment on mesne process, of all the interest of the defendant “in a certain parcel of land situate on Pleasant street in Boston,” is sufficiently certain, if the defendant is interested in only one parcel in such street.

Parol evidence is admissible to show the parcel to which such description was intended to apply.

But if the defendant is interested in more than one parcel in such street, parol evidence cannot be received to prove which parcel was intended to be attached.

Where an officer, having attached on mesne process an equity of redemption, sold the same on execution without having given notice of the *place*of sale, but falsely returned that he lmd given such notice, in consequence of which return a subsequently attaching creditor, being unable to sell the equity of redemption, was prevented from obtaining satisfaction of his demand, the officer was held liable to such creditor in an action for the false return.

The measure of damages in such action is the debt and interest, if the value of the property attached amounts to so much.

This was an action on the case against the defendant as sheriff, for the wrongful acts of one Freeman, his deputy.

The declaration alleged that Freeman, by virtue of two writs against Benjamin Huntington, on the 16th of January and the 8th of March, 1826, attached his right in equity to redeem two parcels of land in Boston, one situate in Pleasant street, the other in Columbia street; that the plaintiffs in those writs recovered judgment respectively for $ 1655 and $ 2095 ; that Freeman, on the 10th of July, 1826, by virtue of the executions issued on the judgments, sold the equities of redemption respectively for $ 2156 and *$*50, and falsely and wrongfully returned that he gave public notice of the *place*of sale ; when in fact he did not give such notice, and by omitting to do so, the lien created by the two attachments was lost; by means of which false return the plaintiff was damnified, he having an attachment on both parcels of land subsequent to the two former attachments, and by that wrongful act of Freeman having lost the benefit of his attachment, and of the judgment which was recovered by him against Huntington for the sum of $ 1900.

The defendant pleaded the general issue.

At the trial, before *Parker*C. J., the plaintiff gave in evidence the executions in the first two suits against Huntington, with the returns thereon, in which Freeman sets forth minutely *314that he performed whatever the law requires in relation to the sa^e equit*68 °f redemption ; also the execution of the plaintiff against Huntington, on which another deputy of the defendant had returned that he levied on the right to redeem the land in Pleasant street, and that on the 16th of April, 1827, he attempted to make a sale of that right, but that no person would bid, on account of a previous sale by Freeman. The plaintiff then proved that the *place*of sale was not designated in Freeman’s advertisement in the newspapers, nor in the notification posted up by him.

Henry Andrews, a witness called by the plaintiff,

testified that he bid off the estate in Pleasant street at the sale made by Freeman ; that he bought it, in fact, for one Gilbert ; that an auction flag.was flying on the premises ; that as many people were assembled as usually attend at such sales ; that the estate was sold at a fair price ; that he heard nothing of any supposed defect in the notice of sale, until some days afterward, when Gilbert spoke of it and declined taking the estate on that account ; and that on December 31st, 1826, Freeman made a deed to the witness.

It was also proved, that the estate in Columbia street was sold at a fair price.

It was proved that Huntington never had any interest in any other estates in Pleasant and Columbia streets, than the two before mentioned.

The defendant contended, that the plaintiff had no attachment of the estates in question by virtue of the return upon his writ, the return being as follows :■—“ I attach all the right, title and interest in and to a certain piece or parcel of land, with the buildings thereon, situate in Columbia street at the southerly part of Boston, and one piece of land and the build ings thereon standing, being situate in Pleasant street in said Boston, which the within-named Benjamin Huntington has to the estates before mentioned.”

It was also insisted, that as the two first judgments exceeded the value of. the estates, and the plaintiff would have received • nothing if Freeman had inserted the place of sale in his advertisement and notification, he was entitled, at any rate, to no more than nominal damages.

*315The chief justice instructed the jury, that as it had been proved that Huntington had no real estate in Pleasant and Columbia streets, except the two estates in question, the return on the plaintiff’s writ contained a sufficient attachment of those two estates, for the purposes of this case.

The jury were further instructed, that as the plaintiff would have received the whole of his debt, had it not been for the false return, they should give a verdict, if they found for the plaintiff, for the full amount of his claim.

A verdict was returned for the plaintiff for his whole demand.

The defendant moved for a new trial, on account of the directions to the jury.

He also moved in arrest of judgment, because the declaration contained no allegation that Freeman gave a deed to Andrews ; without which the title remained in Huntington.

*Rand*and Morey, for the defendant.

The declaration does not show that the plaintiff was injured by the deputy’s proceedings. It does not aver that he gave, or returned that he gave, a deed to the purchaser of the equity of redemption, and consequently the plaintiff might have levied upon it.

The attachment made on the plaintiff’s writ was invalid ; he therefore has no cause of complaint. The return should show clearly the property intended to be attached, for the title of the purchaser goes back to the attachment. The description need not be by metes and bounds, as is required by statute in the case of an extent, but it ought to be at least as certain as the description in a deed ; and perhaps more so, for a deed is the language of the grantor and is to be construed favorably for the grantee. The return does not refer to any thing which would make it certain. The officer might as well have returned that he attached all the real estate in his county, belonging to the debtor. 1 Backus’s Sher. 317 ; *Brown*v. *Maine Bank,*11 Mass. R. 159 ; *Barnes*v. *Billington,*4 Day, 86, note ; 3 Stark. Ev. 1028.

In *Rich et al.*v. *Bell,*16 Mass. R. 294, the plaintiffs were held entitled to nominal damages only, because, if the officer had performed his duty in regard to previously attaching creditors, the plaintiffs would have derived no benefit from their at*316tachment. So here, if the officer had advertised the *place*of sa^e’ l^e plaintiff’s attachment would have been of no avail, and the damages must be nominal.

S. *Hubbard*and *Cooke, contra,*

cited in regard to the sufficiency of the plaintiff’s attachment, *Worthington*v. Hylyer, 4 Mass. R. 205 ; *Brown*v. *Bellows,*4 Pick. 179 ; *Ward*v. *Bartholomew,*6 Pick. 409 ; *Perrin*v. *Leverett,*13 Mass. R. 130 ; *Bacon*v. *Leonard,*4 Pick. 277 ; *Swyft*v. *Eyres,*Cro. Car. 548 ; *Rex*v. *Bp. of Rochester,*2 Mod. 3 ; *Windham*v. *Windham,*Dyer, 376 ; *Jackson*v. *Clark,*7 Johns. R. 223 ; *Jackson*v. *De Lancey,*11 Johns. R. 365 ; *Howard v. Dan*iels, 2 N. Hamp. R. 139 ; *Crosby*v. *Allyn,*5 Greenleaf, 453.

As to the motion in arrest of judgment, they cited 1 Bigelow’s Dig. *Pleading, B, pl.*2, 5, 10 ; ibid.*D; Hartwell r. Hemmenway,*7 Pick. 117.

As to the measure of damages, they cited *Tyler*v. Ulmer, 12 Mass. R. 169; *Dearborn*v. *Dearborn,*15 Mass. R. 319 ; *Barnard*v. *Ward,*9 Mass. R. 269 ; *Warmoll*v. *Young,*5 Barn. & Cressw. 660 ; *Whitaker*v. *Sumner,*7 Pick. 557.

*Per Curiam.*

The return of the attachment on the plain-

tiff’s writ against Huntington has as much certainty as returns m general of attachments on mense process. Whether the description of the land should be as certain as in the case of a deed, may be doubted ; but if it should be, we are not clear that this return would be insufficient.1 Huntington had only one house in each street, so that the property attached would be readily ascertained. *Id cerium est fyc.*It is said, however, that parol evidence to ascertain the land, is inadmissible. But even where the description is free from any objection of uncertainty, as where the owners of the adjoining land are named, it is necessary to have recourse to parol evidence to determine the bounds.1 If Huntington had been the owner of two es tates in the same street, parol evidence could not have been received to show which of the two was intended to be attached.

In regard to damages, we have been referred to the case of *317*Rich*v. *Bell;*where personal property of a debtor having been attached on several writs, the officer, by direction of all the attaching creditors, except the last one, sold the property and applied the proceeds to the judgments afterwards recovered, according to the priority of the attachments ; whereupon the dissenting creditor sued the officer, and the Court held that he was entitled to nominal damages only, because, if the property had been kept by the officer and been sold upon execution, the proceeds would have been insufficient to satisfy the judgments of the other creditors. There, if the fault of the officer, which was the ground of complaint, had not been committed, the dissenting creditor would have derived no benefit from his attachment. This case is different. Here the complaint is, that the officer made a false return ; whereas, if he had returned the truth, this creditor of Huntington would have come in and obtained satisfaction of his demand. He is entitled to judgment for the amount of the debt and interest and costs.

*Judgment according to verdict.*

1

 See *Howard,*v. *Daniels,*2 N. Hamp. R. 137; *Haven v. Richardson,*5 N. Hamp. R. 127,128; *Lyman*v. *Loomis,*5 N. Hamp. R. 408.

1

 See *Wing*v. *Burgis,*13 Maine R. (1 Shepley,) 111; *Linscott*v. *Fernald,*5 Greenleaf, 496.