#### Perez Howard *et al. versus*Mace Smith.

Where goods attached by an officer on mesne process, are delivered to a keeper upon his accountable receipt, and by him are restored to the debtor, and are after-wards demanded of the officer upon the plaintiff's execution, but not until after the expiration of thirty days from the rendition of the judgment, the officer is not liable to the plaintiff for not delivering the goods, the attachment having been dissolved by lapse of time.

But where the goods so attached, receipted for and restored, were tools of trade, and the debtor brought an action of trespass against the officer for attaching them and gave in evidence the value of the goods and recovered judgment therefor, and the plaintiff, in pursuance of his agreement to indemnify the officer for making the attachment, defended the action of trespass and satisfied the judgment, it was held that the officer was liable to the plaintiff for the goods, for by the judgment and satisfaction the property became vested in the plaintiff.

The parties agreed to the following facts. 1 On March 30, 1829, the plaintiffs, in order to obtain a just debt of 56 dollars from one Brown, sued out a writ against him, which they delivered to Smith, who was a constable, with directions to attach the goods mentioned in the return of Smith *207upon the writ, and then engaged to save Smith harmless therefor. That action was duly entered at September term 1830, of the Court of Common Pleas, and the plaintiffs recovered judgment for $ 60*70 damage and $ 8*20 costs of suit. Upon this judgment execution was sued out, dated October 2, 1830, and put into the hands of a deputy sheriff, who on December 3d, and not before, demanded of Smith, by the plaintiffs’ direction, the articles which he had attached on their original writ; with which demand Smith refused to comply. Soon af ter the attachment, to wit, on April 12, 1829, the defendant, at Brown’s request, and without the knowledge of the plaintiffs, accepted one M‘Intosh as a receipter for the goods ; which were then restored to Brown’s possession. On April 30, 1829, Brown commenced an action of trespass against Smith on account of some of the articles taken by him, which action was tried at February term 1830, on the general issue, and Brown recovered a verdict for 200 dollars. The plain tiffs defended the action for Smith at their sole expense, and after judgment they indemnified Smith by paying to Brown the damages recovered and all costs. In the trial of Brown’s action against Smith, Brown gave in evidence to the jury the value of each of the articles named in this writ, and as he claimed damages for an interruption to his business, it was also given in evidence that he had had the use and possession of those articles ever after he procured the receipter as before mentioned. Brown contended, in his action, that those articles were tools of his trade, and so not subject to attachment, and such was the opinion of the court.

On December 6, 1830, the plaintiffs commenced this action against Smith, and if they were entitled to recover, the Court were to award such damages as law and justice should require ; otherwise the plaintiffs were to be nonsuit.

*Mann*for the plaintiffs.

The defendant was bound to transfer to the plaintiffs the tools of trade attached, for the plaintiffs having satisfied the judgment recovered by Brown, the property in the tools became vested in them. *Campbell*v. *Phelps,*1 Pick. 62; *Keyworth*v. *Hill,*3 Barn. & Aid. 685 ; 3 Stark. Ev. 1281 (and note b) to 1283 ; *Charles River Bridge*v. *Warren*Bridge, 7 Pick 491

*Nov. 4th*

*208*Feb. term*1832.

As to the rest of the goods, it was not necessary that the demand on the defendant should be made within thirty days after the rendition of judgment against Brown for the defendant having permitted the goods to be taken out of the jurisdiction of the commonwealth, such demand would have been nugatory. *Phillips v.*Bridge, 11 Mass. R. 247; *Webster*v. *Coffin,*14 Mass. R. 196; *Cooper*v. *Mowry,*16 Mass. R. 5; *Newcomb*v. *Brackett,*ibid. 161; *White*v. *Bagley,*7 Pick. 288.

*Metcalf*and *Cobb*for the defendant.

The plaintiffs not naving demanded the goods within thirty days after the judgment, the attachment was dissolved. *St.*1784, c. 28, §11.

In order that the satisfaction of a judgment in trespass *de bonis asportatis*may change the property, there must be a permanent conversion ; here the goods were restored to Brown, and the damages recovered by him were for the detention .and not for the value of the goods. *Keyworth*v. *Hill,*3 Barn. & Aid. 688; 3 Stark. Ev. 1508; *White*v. *Philbrick,*5 Greenl. 149, 150; 3 Dane’s Abr. 185, c. 77, *art.*1, § 2. The value was proved only in reference to the question whether they were exempted from attachment as tools of trade. *Howard*v. *Williams,*2 Pick. 83.

1

 See *Buel*v. *Metcalf,*Kirby, 40; *Parsons*v. *Phillips,*1 Root, 481; *Catlin v. Lowrey,*1 Chipman, 397; *Strong*v. *Hoyt,*2 Tyler, 208; *Baker*v. *Fuller,*21 Pick. 318

The opinion of the Court was afterwards drawn up by

Wilde J.

Upon the facts agreed the plaintiffs claim damages of the defendant for not safely keeping certain goods' by him attached on mesne process in their favor against one Brown, and for not delivering them to the plaintiffs’ .agent on demand, so that the same might be taken on the plaintiffs’ execution on the judgment recovered in that suit, or otherwise disposed of as the law directs.

The defence is, that the plaintiffs’„execution was put into hands of one John Baker, a deputy sheriff, and that no demand was made upon the defendant until after the space of thirty days from final judgment in the suit.

And as to a part of the goods and articles attached, we are of opinion" that the defence is well maintained and valid. At the period when the demand was made, the attachment was dissolved by lapse of time. If the goods had remained in the defendant’s hands when the thirty days expired, he would have been liable immediately after to restore the possession to the *209debtor ; and having restored it before that time on the accountable receipt of a third person, he is entitled to the same protection and defence as he could have claimed if the goods had been restored to the debtor after the thirty days. While the attachment continued, the attaching officer had the constructive possession of the goods attached, and a security for their delivery. The removal of the goods from the commonwealth had no effect on the rights and liabilities of the parties, but the defendant’s remedy on his security, as to the portion of goods which were in Brown the debtor’s possession, at the time of the demand, and which he had a right to retain, has been lost by the plaintiffs’ laches ; and as to these goods the plaintiffs have no claim on the defendant either in law or equity.1

But some of the goods the debtor had no right to withhold ; and the plaintiffs’ remedy, as to these, remains unimpaired by the dissolution of the attachment; because by the action com menced by Brown against the officer, and by the recovery of judgment, and the satisfaction of it by the plaintiffs, the property was changed, and thereupon vested in them. The plaintiffs had the same right to claim these goods at the hands of the officer, as the debtor would have had after the attachment had been dissolved, if they had remained in the actual possession of the attaching officer, and there had been no permutation of property. It is not denied by the defendant’s counsel, that such would be the legal effect of a recovery of the full value of the goods, but they contend that there was only a temporary conversion, that the goods were restored before the commencement of the debtor’s action, and that he only recovered damages for the detention of them for a short time. But the facts agreed are irreconcilable with this supposition. It is agreed that the value of the goods was given in evidence on the trial of the action against the officer, and the amount of the verdict shows conclusively that the jury gave damages to the full extent of the value of the goods, and not for the mere detention of them for a few days. For the value of these goods, there*210fore, at the time of the demand, the plaintiffs are entitled to recover ; and according to the agreed statement of facts, the defendant is to be defaulted.