#### John Fairfield *versus*Luke Baldwin.

Id order that a prior attachment of a debtor’s property by one creditor, may be valid as against a subsequent attachment by another, the first writ, at the time when it is served, should set forth clearly the cause of action intended to be secured by the attachment.

If a new count is filed by the first attaching creditor, which does not appear by the record to be for the same cause of action as the original declaration, and judgment for the plaintiff is rendered thereon, the attachment is vacated as against a subsequent attaching creditor.

Thus, where the writ, at the time when the attachment was made, contained only general money counts, and the plaintiff filed new counts on promissory notes, the attachment was held to be vacated as against a subsequent attaching creditor, because the original declaration did not show that the notes were intended to be produced in evidence.

If property is attached on a writ founded on two demands, one of them honest and the other fraudulent on the part of the plaintiff, and judgment is rendered for the plaintiff upon both, the attachment is wholly void as against a subsequent attaching creditor.

An officer attached personal property of a debtor on a writ sued out by Í, subject to a previous attachment in favor of K. F was admitted, under *St.*1823, *c.*142, to assume the defence of K’s action, on the ground of its being fraudulent. K’s writ, at the time when it was served, contained general money counts, and by leave of court he filed new counts on promissory notes, upon which counts he obtained a verdict, judgment and execution. F gave the officer notice not to levy the execution on the property attached, stating that by the proceedings which had taken place in the suit, K’s attachment had been vacated. No indemnity was offered by F, nor demanded by the officer. The officer disregarding the notice, levied K’s execution on the property attached. F afterwards obtained judgment and execution, and directed the officer to levy on the property attached on his original writ, but the officer returned the execution unsatisfied, and so F lost his debt. Thereupon F brought an action against the officer for not applying the property to his execution, and upon the trial he proved that the new counts filed by K were for new and fraudulent causes of action. It was *held,*that the officer was liable to F, and that as the property returned as attached on F’s writ was more than the amount of his execution, the measure of his damages was the amount of his execution with interest from the time when it ought to have been levied.

This was an action of the case for the default of the defendant as a deputy sheriff.

Upon a case stated it appeared, that on July 16, 1825, the plaintiff sued out a writ of attachment against one Cyrus King, and delivered the same to Baldwin, then and ever since a deputy sheriff, with directions to attach King’s stock of goods, then in King’s store. The defendant made service of the writ, and duly returned thereon that he had attached property of King to the value of $4695-86, subject to two other attach*394menis, this being the third attachment on the same property. Previously to this ‘service, Joseph King and Elisha King had sued out two several writs of attachment against Cyrus King, and had delivered the same to Baldwin, with directions to attach the stock of goods before mentioned, and Baldwin thereupon attached the same and made due return of both writs. On July 27, 1825, these two attaching creditors were desirous that the property, which consisted of piece goods and shoes, should be sold on the original writs, but the plaintiff gave a written notice to Baldwin, that he, the plaintiff, should resist the demands upon which the two prior attachments were founded, as being fraudulent, that he should object to the sale of the goods until judgment should be recovered in due course of law, and the goods be sold on execution, and that if Baldwin should sell the goods upon the writs, it would be at his peril. The other creditors and the debtor agreed to the sale, and in pursuance thereof the goods were sold for $4769-25. At October term 1825 of the Court of Common Pleas, Elisha King failed to enter and prosecute his suit. Joseph King entered his suit at that term, and Fairfield was allowed, pursuant to *St.*1823, c. 142, to come in as a subsequent attaching creditor and defend against the suit of Joseph King. The writ of Joseph King contained two counts, one for $ 10,000 money had and received, the other for $ 5000 for goods sold and delivered. In the progress of the suit, Joseph King, under leave to amend, filed nine new counts, as follows : — 1. On a note dated January 22, 1825, payable to Joseph King for $'3319-94 ; — 2. On a note dated February 25, 1825, for $2681-47 ; — 3. On a note dated July 5, 1825, for $200; — 4. For $600 money had and received on certain notes and checks; — 5. For $600 money lent &c. on certain notes and checks ; — 6, 7, 8. On checks of the Globe and City banks for $100, $300 and $200, respectively; and 9. For $320, the balance of an account annexed to the writ. Upon a trial in the Supreme Court, divers notes, checks and accounts were offered in evidence by Joseph King, and the jury found a general verdict in his favor for $7517-14. Judgment was rendered upon this verdict on February 16, 1826, and on the 17th the execution was issued ‘ *395and on the same day Fairfield gave a written notice to Baldwin, stating that he considered that the attachment returned on the original writ sued out by Joseph King, upon which the execution issued, if it ever existed to any lawful purpose, had been discharged by “ such proceedings as had since been had in that suit,” and that as the next attaching creditor he, Fair-field, should claim to hold the goods attached and the pro ceeds thereof, to respond any judgment which he might recover in his action against Cyrus King ; and that Baldwin would make his return on Joseph King’s execution at his peril, as he, Fairfield, should hold Baldwin bound to levy such execution as Fairfield might recover, upon the property attached. Fairfield duly entered his action against Cyrus King, and at March term 1827 of this Court recovered judgment, and within thirty days sued out his execution, and delivered the same for service to Baldwin, with a written request that he would levy it immediately on the property attached upon the original writ. But Baldwin returned upon the execution, that the property attached on the original writ, had been applied in part satisfaction of the execution in favor of Joseph King ; and he returned Fairfield’s execution in no part satisfied. Baldwin at no time required of the plaintiff a bond of indemnity, nor did the plaintiff offer to save him harmless, or offer any reason for supposing that the attachment of Joseph King was vacated, or that Joseph King was not entitled to receive the amount of his judgment against Cyrus King, other than is stated in his written notices before mentioned ; nor did Baldwin make of Fairfield any inquiries as to what those proceedings were, which were said to have vacated the attachment, or offer to pay the money to Fairfield upon any terms. It appeared from the deposition of Cyrus King, that the note of February 25, 1825, for $2681-47, was given for a receipt of the same date as follows : — *“*Received of Cyrus King his note of this date for $2681-47, payable on demand, which I promise to account to him for. Joseph King.” It further appeared from his deposition, that oome of the notes and checks, declared on in the new counts, and which were antedated, were given after the commencement of the suit of Joseph King, in exchange for notes and *396checks previously due to Joseph King and his partner, E. Davenport.

........_ ■ The Court were to enter up such judgment for the plaintiff or the defendant, as should be conformable to the law and the justice of the case.

*March 4th,*‘

*Rand*and *Cooke*for the plaintiff.

Such amendments as were made in the suit of Joseph King, even if innocently made, discharge bail and vacate an attachment, as against a subsequent attaching creditor. The new counts not only did not appear to be by *the*record, but were not, in fact, for the same causes of action as the original counts. *Bean*v. *Parker,*17 Mass. R. 591; *Hill*v. *Hunnewell,*1 Pick. 192; *Willis*v. *Crooker,*ibid. 204 ; *Putnam*v. Hall, 3 Pick. 445 ; *Ball*v. Claflin, 5 Pick. 305 ; *Danielson*v. Andrews, 1 Pick. 156 ; *Brigham*v. *Este,*2 Pick. 423 ; *Van Cleef*v. *Therasson,*3 Pick. 13 ; *Denney*v. *Ward,*ibid. 199.

If then as between Joseph King and Fairfield the latter had the best title to the goods, he has not done any thing, or omitted to do any thing, by which his title has been lost. He has a right of action against the deputy sheriff, who, after due notice from him, instead of standing aloof from both parties, favored one of them. Having assumed the responsibility of applying the property to King’s execution, he must stand or fall by King’s title. *Warmoll*v. *Young,*5 Barn. & Cressw. 665, 667.

As to a bond of indemnity, none was asked for by the defendant of the plaintiff, nor was the defendant entitled to one from the party *against*whom he undertook to act. *Bond*v. *Ward,*7 Mass. R. 123.

The plaintiff used all proper diligence to claim and secure his rights. The notice of February 17, 1826, though it did not specify the proceedings supposed to have vacated the attachment in favor of Joseph King, was yet sufficient to put *the*defendant upon inquiry.

But no notice from the plaintiff was necessary. On the contrary, it was incumbent on the defendant, before he paid over the money to Joseph King, to have given notice of his intention to the plaintiff, in order that the plaintiff might take measures, if he saw fit, to set aside King’s executioi. *War**397*noll*v. *Young,*5 Barn. & Cressw. 666 ; *Lovick*v. Crowder, 8 Barn. & Cressw. 135, 136, 137.

The defendant is not protected by his precept,- unless he acts honestly and without notice. Otherwise there would be uu mode of questioning the validity of an attachment supposed to be fraudulent; and the decisions on the subject of amendments, in actions of the case against the officer, would be erroneous. An action against the defendant for disobeying Joseph King’s execution, could have been maintained by no one but Joseph King himself, and against him there would have been a complete defence, for he was the contriver of the fraud. *Pierce*v. *Jackson,*6 Mass. R. 244 ; *Saunders*v *Bridges,*3 Barn. & Aid. 95.

The plaintiff is not, in consequence of his coming in under the statute, and defending the suit of Joseph King, estopped to contest the validity of the proceedings in that suit; because, 1. The defence was in fact and in law the defence of Cyrus King ; — 2. There is nothing in the statute which makes such defence conclusive, as an estoppel or otherwise ;—3. The question there was, whether any thing was due or not; here the question is, whether the attachment was vacated or not; the parties, too, are different; — 4. The amendments were made before the present plaintiff became a party to that suit; and 5. The remedy provided by the statute is cumulative *Adams*v. *Paige,*7 Pick. 547*et seq.*

*Sohier*and *Sumner*for the defendant.

When the plaintiff, on the 17th of February 1826, gave the defendant notice not to apply the proceeds of the goods in satisfaction of Joseph King’s execution, he should have offered an indemnity. The question was, whether the defendant should obey a precept coming from a competent tribunal, or should disregard it in consequence of a vague suggestion from an interested party, that the attachment had been vacated, the plaintiff not stating any cause which in his apprehension had produced that effect. If the defendant could require indemnity from either of the attaching creditors for complying with his wishes, ought not such security to be given by the one who asks him to act contrary to an apparent duty ? Besides, the defendant knew that the plaintiff himself had been permitted to defend against *398the suit of Joseph King, and that the jury, after a full hearing uPon the merits, had given a verdict for Joseph King, and ' thereupon a judgment was rendered on which the execution in

question was issued.

But Joseph King’s attachment was not vacated by filing the new counts. The writ, when served, contained a count for $ 10,000 money had and received, and at that time there were in the hands of Joseph King one note for $3319-94, and another for $ 2681-47 ; and on these notes, as appears by the verdict, and on the several other causes of action described in the writ, judgment was rendered. It is very clear that these notes, which belonged to Joseph King and were . in his possession when his writ was served, might have been given in evidence under the money counts; and upon no sound principle, therefore, can it be contended, that the describing these notes in new counts afterwards filed, could vacate the attachment. It certainly does not prejudice a defendant thus to be informed before trial, on what cause of action the suit is instituted ; nor can the writ be considered as altered to the injury of a subsequently attaching creditor, when the same amount might be recovered under the general counts originally contained in the writ. In the present case, no creditor was injured, for the two demands of Joseph King, for $ 3319-94 and $2681-47, which might have been given in evidence under the money counts, were more than sufficient to exhaust the whole of the property attached ; and so far as regards those demands it would be inequitable to consider the attachment vacated by the filing of the new counts. The case of *Ball*v. *Claflin,*5 Pick. 303, does not require that new-counts shall appear *of record*to be for the same cause of action as the counts in the writ wThen it was served.

Further, the defendant knew nothing about the amendments made in Joseph King’s writ; and if he had made inquiry after receiving the plaintiff’s notice, he would have learned, that under leave to amend, courts will not suffer new causes of action to be introduced, and from the fact that in the present case the new counts were admitted, he would have inferred that the causes of action in the new counts were proved to be the same with those included in the original general counts. *399But at all events, a mere ministerial officer to whom an execution is delivered, is not to be held accountable for proceedings had in the court from which the execution issued. He is to obey his precept and is not to look behind it. *Parker*v. Dennie, 6 Pick. 227. That new causes of action were embraced in some of the new counts filed, was not known to Fairfield or Baldwin until long after the present action waá* brought. Under the *St.*1823, c. 142, the present plaintiff took control of the defence in Joseph King’s action, for the purpose of detecting a fraud, but he was unable to prove that any fraud had been practised. He is not to be allowed to try over again the same question in an action against the officer. It cannot be incumbent on an officer to foresee a disclosure, to be made after a suit is commenced against him for neglect of a duty which is founded on facts not brought to light.

It will not be contended by the defendant, that in selling the goods on the writ, he conformed strictly to the provisions of *St.*1822, *c.*93, but it was more advantageous to all parties concerned, that the property should then be sold, rather than be kept until the issuing of an execution ; and in regard to damages the inquiry will be, what injury has the plaintiff suffered by the defendant’s acts. Now it is manifest, that if the defendant had proceeded strictly according to law and sold the goods on execution, the whole would have been required for the satisfaction of Joseph King’s execution ; so that the plaintiff’s damages are merely nominal. *Rich*v. *Bell,*16 Mass. R. 294.

*April 6th*1832.

Putnam J.

delivered the opinion of the Court. If the prior attachment which was made by the defendant upon the writ of Joseph King against Cyrus King, were vacated, the plaintiff’s attachment would be the only one upon the property. Was the prior attachment vacated by the amendment introducing the new counts ?

The declaration in the writ of Joseph King against Cyrus King originally contained two counts ; one for money had and received &c. for $ 10,000, and another for goods sold and delivered, for $ 5000. The new counts filed under the leave to amend, were [as before stated.]

The claim or cause of action for the security of which a *400creditor obtains his lien by attachment, should be- clearly indicated in the writ-and declaration. The writ should state the amount or value of the property to be attached, and the declaration should set forth clearly the cause or causes of action to be secured by the attachment. And it would be a manifest injustice to a subsequently attaching creditor, to permit the prior attacher to amend by the introduction of claims which were not originally set forth and relied upon in the declaration, for he has a vested interest m the surplus. But amendments which should be made consistently with those causes of action, which were substantially though not technically described, would not affect the rights of the attaching creditors.

If, for example, there were the money counts only in the declaration, which should refer to a bill of particulars annexed,' containing a description of bills of exchange, notes, &c. which would be offered in evidence, it would seem that counts technically describing those bills of exchange &c. and the other causes set forth in the account or bill of particulars annexed, would not be considered as new causes of action, but entirely consistent with the intent of the plaintiff as originally manifested in his writ and declaration. If however such an intent could not be inferred from the writ and declaration in regard to the causes of action to be added, the new counts would be considered as made for other, and not for the original causes set forth.

In *Willis v.*Crooker, 1 Pick. 204, the original counts were, 1. Upon a note for $ 171-82 ; 2. For $2000 money had and -eceived. The new counts were, 3. For a balance of account, $ 382 ; 4. On a note for $196 ; and 5. On a note for $500 ; and judgment was rendered for $ 1166-91. And there, it was insisted, that the second count would have been sufficient to support the amount of the judgment recovered, and would cover the new counts. But the Court answered, that it could not be inferred from the record that it was intended to cover them. And the attachment was vacated by the amendment.

The rights ot the attaching creditors should be ascertained as they existed and were disclosed by the writ and declaration, *401a- <he time when they made their attachments. If it were ot srwise, the attachment law might be a most powerful engine of (raud, that would work up the whole of the debtor’s property for the use of the first attacher, who should think proper to enlarge his claims sufficiently to embrace it.

The same principle applies to the liability of bail, where the action and all demands are referred; *Hill*v. *Hunnewell,*1 Pick. 192 ; notwithstanding the bail might gain by the agreement to refer. *Bean*v. Parker, 17 Mass. R. 603.

It is contended for the defendant, that Joseph King, at the time when he procured the attachment to be made, held in his own possession two notes against Cyrus King, which are described in the first and second new counts, *viz.*one for $ 3319-94, and the other for $ 2681-47 ; and that these notes could have been given in evidence in support of the money count, which greatly exceeded those sums together, and that the amount of those notes exceeds the value of the property which was attached.

But the original declaration does not show that the then plaintiff, Joseph King, did intend to produce those notes in evidence. It cannot be made apparent from the declaration (as it ought) that Joseph King brought his action upon those notes and attached the property for the security of the payment of those notes.1

But there is a more grave answer to the note for $2681-47, and to the claims sought to be recovered in several of the other new counts. It appears from the deposition of Cyrus King, that this note was given for the following receipt: — “ Boston, 25 Feb. 1825. Received of Cyrus King his note of this date for $2681-47, payable on demand, which I promise to account to him for. (Signed) Joseph King.” So that this note was without any consideration. If Joseph should recover it, he was to pay or account to Cyrus for it. Nothing was due from Cyrus to Joseph on that account. And three or four of the other new counts were upon notes or checks, which were made, long after the attachment, payable by *402Cyrus to Joseph for notes which were originally given to King andDavenport. _ _ •

_ _ Thus it is now proved, that a great part of the sum recovered by Joseph King against Cyrus, in the suit which the plaintiff in this action attempted to defend under the statute provided for that purpose, was not justly due; on the contrary, that the recovery was obtained by the suppression of the receipt given to Cyrus King, which would have defeated the note to which it referred, and by the manufacturing of evidence after the attachment, to make Joseph King appear to be the sole creditor of Cyrus, when in fact the contents of the papers given up were due, if at all, to King and Davenport and not to Joseph King. The business was so effectually covered, that Fairfield, the present plaintiff, was not able, in the defence of the suit in the name of Cyrus King, to tear off the veil. The jury were deceived, and Joseph was enabled to recover against Cyrus a larger amount than the value of the property attached.

But it is urged for the defendant, that he was innocent in all that matter. It may be that he has not intended to do any thing morally wrong ; but he acted with full knowledge of the plaintiff’s claims. On the 27th of July, 1825, the plaintiff informed him, that he should resist the demands upon which the attachments prior to his own were founded, as being fraud7 ulent, and that he should utterly object to the sale of the goods attached, until judgment should be rendered in due course of law. Nevertheless the defendant so far came into the views of Joseph King as, immediately after that notice, to sell the goods and the proceeds have been applied towards the satisfaction of the execution which Joseph recovered in his suit against Cyrus. In short, the defendant has been repeatedly warned from the beginning, that the plaintiff would contest the claims and pretensions of the prior attaching creditors, and that he should conduct himself accordingly. However we may regret that a meritorious officer should suffer from any act not intentionally wrong, yet that consideration is not to prejudice the legal rights of the plaintiff. We hope the defendant has taken an indemnity from the party in whose favor he has acted. But whether he has or not, is a question which is not *403to influence this decision. He must stand or fall, according to the rights of the party to whom he has lent his aid.

It is insisted that the attachment should not be vacated in the whole, but that it should be sustained so far at least as to cover the amount due,on the note for $3319'94 ; which would be sufficient nearly of quite to cover the property. Without again stating the reasons why that note, if honestly due, could not be legally added to the original declaration in virtue of the leave to amend, there is another answer which we think would be fatal to that suggestion. The argument amounts to this, that a man having a just claim to a small sum, who should fraudulently bring forward claims to a much larger amount, not due, and who should be detected, should be put in as good a condition, at least, as if he had not mixed the good and the bad together and consolidated the whole into a judgment. We think the law is directly the reverse, and that the fraud corrupts and destroys the whole.

We are all clearly of opinion, that for the reasons before stated, the attachment which was made for Joseph King prior to that which was made for the plaintiff was vacated. We need not consider a great many points which were urged for the defendant, as we have come to this result.

The counsel for the defendant have referred to the case of *Rich*v. *Bell,*16 Mass. R. 294, to show that the plaintiff should recover no more than nominal damages. But in that case the first attaching creditor had an honest judgment, upon which his execution issued; in this case the judgment was fraudulent in respect to the plaintiff. In that case the first attaching creditor preserved his lien ; in this case he lost it.

We think that the defendant is by law accountable to the plaintiff in the same manner as if the attachments on the writs of Joseph King and Elisha King had not been made. The defendant admitted by his return upon the plaintiff’s writ, that the property which he attached was of greater value than the plaintiff’s demand as it was finally liquidated by the judgment, if the prior attachment should be rendered inoperative. That being the case, and the plaintiff’^ judgment and execution being regular, and the defendant having, failed to satisfy the same, and having offered no legal excuse for omitting to do *404so, the judgment must be for the plaintiff to the amount of his execution, with interest since the same ought to have been levied at his request upon the property originally attached.

*Defendant defaulted.*

1

 See *Seeley*v. *Brown,*14 Pick. 177; *Wright*v. *Brownell,*3 Vermont K. 435.