
    Caleb Turner versus Nathaniel Austin.
    No overt act by the sheriff is necessary to constitute an attachment of property previously in his custody.
    This was an action of the case against the defendant, as sheriff of this county, for the default of himself and his deputy, Isaac Train; and it was tried on the general issue, before Jackson, J., at the sittings here after the last October term.
    The plaintiff had sued out a writ against one Calvin Turner, to recover a certain debt due to the plaintiff, and delivered it to the defendant to be served, with directions to attach a certain vessel then on the stocks, which was the property of the said Calvin.
    
    The defendant went immediately to the vessel, and found it had been previously attached by Train, upon a writ in favor of one Cutter.
    
    The defendant thereupon returned with Train to the plaintiff, who lived within a few rods of the place, and told him that, finding Train in possession of the vessel, he had delivered to him the plaintiff’s writ.
    
      Train then attached the vessel on the plaintiff’s writ. The plaintiff afterwards recovered judgment in his said action, and delivered his execution in due season to the defendant. The vessel was sold on- Cutter’s execution, and produced more than sufficient to satisfy that judgment; * but the whole balance of the [ * 182 J proceeds of the sale was appropriated by Train towards satisfying an execution in favor of one Nathaniel Goddard against the said Calvin Turner.
    
    The defendant alleged that the vessel had been attached by Train, upon a writ in favor of said Goddard, after the attachment made for said Cutter, and before that made for the plaintiff. It appeared that, on the 22d of August, 1816, in the afternoon, the writ in favor of Goddard was delivered to Train, with directions to go to the shipyard where the said vessel was building, and attach all the timber and lumber in the yard. He was not directed to attach the vessel, Goddard supposing that he could hold the vessel without any attachment; because the said Calvin was building it for him upon a certain contract, and he, Goddard, had advanced large sums of money towards the work and materials expended in the building. Train accordingly made the attachment, that afternoon, of the said lumber and timber, but did not attach the vessel.
    On the evening of the same day, Cutter, having procured his writ, went to one Hunnewell, another deputy of the defendant, requesting him to attach the vessel. Hunnewell, being informed that Train had been making an attachment in the same place, proposed to Cutter that they should first go and see Train, promising to go and make the attachment, unless Train would agree to do it immediately. They went accordingly, and called Train out of bed, it being late in the evening; and upon inquiry were informed by him, that he had not then attached the vessel for Goddard; and one of the witnesses, who was present, testified that Train mentioned as a reason, that Goddard considered the vessel as already his. Two other witnesses present at the time, did not testify that they heard the remark; and Train himself testified that he had never seen Goddard at that time, that his orders for that first attachment [ * 183 ] were received from * Goddard’s attorney, and that he did not know there was any vessel there, until he went to the yard to attach the timber and lumber for Goddard. Cutter then desired him to go and attach it on his writ.
    
      Train testified that he was at first unwilling to go, being much fatigued, and that he preferred to let Hunnewell do it; but that afterwards, on reflecting that the timber and lumber, which he had attached on Goddard’s writ, was insufficient to satisfy that debt, he thought it best to go himself, that he might attach the vessel also for him as well as for Cutter; fearing, as he testified, that if Goddard’s debt should not be fully secured, he might himself be made responsible for omitting to attach the vessel, when shown to him as the property of the debtor. He went accordingly with Cutter, and attached the vessel on his writ; and immediately afterward, as he testified, he attached it for Goddard. This was done about midnight, and twenty or thirty minutes before the defendant came there with the plaintiff’s writ. There was no one then in the yard, but Cutter, and a man whom Train had left there in the afternoon, to keep the timber and lumber he had attached. Train at that time knew nothing of the plaintiff’s having any action or demand against Calvin Turner He did not mention to Cutter, nor afterwards on that night to the plaintiff and defendant, when he met them together, that he had attached the vessel for Goddard; and it did not appear that any inquiry was made of him about it.
    The plaintiff contended that the supposed attachment, made in the manner above mentioned on Goddard’s writ, and without any orders for that purpose from him, was not valid and effectual to defeat the subsequent attachment made for the plaintiff.
    The judge instructed the jury, that Train, after having taken the vessel upon the attachment made for Cutter, might attach it again upon Goddard’s writ, without any open act or ceremony [ * 184 ] whatever. He reminded them of *the delicacy of the trust which the law reposed in officers in such cases, and of the ease with which it might sometimes be abused; and directed them to find a verdict for the plaintiff, unless they were fully satis fled that Train did really and bond fide make the attachment for Goddard, in manner above mentioned ; but that, if they were satis fled of that fact, their verdict should be for the defendant.
    The jury returned a verdict for the defendant; and the plaintiff moved for a new trial on account of the said opinion and direction of the judge.
    When Train was offered as a witness by the defendant, he was objected to as incompetent. It appeared that the defendant had given him a release of all demands on account of this action ; but the plaintiff objected that he was still an incompetent witness, by reason of his agency in the transactions complained of in the declaration. This objection was overruled, and the plaintiff moved for a new trial also on account of the admission of the said witness.
    
      Bigelow, sen., for the plaintiff,
    contended that it was not competent for the officer thus, by a mere act of his mind, and without any visible act or ceremony whatever, to defeat or vary the rights of parties. Still less could he do so in this case, having received no directions from Goddard to make that particular service of his precept. On the contrary, he had explicit orders to attach the timber and lumber in the yard, not the ship on the stocks. His attaching the ship was then contrary to the directions and even to the wishes of Goddard. In the case of Smallcomb vs. Buckingham, & Al. 
       it was settled that if two writs of execution are delivered to the sheriff on "the same day, he has not an election to execute which he pleases, but he must execute that which was first delivered. Now, in the case at bar, the plaintiff’s writ was first delivered to the officer, so far as respects the attachment of the vessel. It is true that, by the case just cited, Goddard was entitled to the money arising from the sale of the vessel; # but the [ * 185 ] officer is answerable to the plaintiff for his misconduct.
    
      Train was not a competent witness. If he swore falsely, it would be impossible, in the nature of things, to convict him of perjury. This of itself should have excluded him. The action might as well have been brought against him as against the sheriff; and until the latter released him, if not since, he maintained the defence at his own cost .
    
      Peabody, for the defendant,
    cited the case of Bond vs. Ward, 7 Mass, jRep. 123, as to the validity of Goddard’s attachment; and in support of the competency of Train, he referred to the American edition of Phillips’s Law of Evidence, 94, 98, and to Gilb. L. of Ed. 114.
    
      
      
        L. Raym. 251. —1 Salk. 320. S. C.
    
    
      
      
         Strange, 650, Powell vs. Hord. —L. Raym. 1411, S. C. —Com. Dig. Tit. Test moigne, B. 1.
    
   Parker, C. J.,

delivered the opinion of the Court. We are of opinion that Train, the deputy of the defendant, being released by him, to whom alone he would be directly accountable in consequence of a verdict in the action for the plaintiff, was a competent witness ; although undoubtedly standing in a very questionable point of light as to credit, as was suggested to the jury by the judge who sat in the trial.

We are then to consider the fact to have been legally proved, that before the plaintiff’s writ was tendered to the deputy for service, he had made two attachments of the vessel; and it appears Jiat the judgments, recovered in the two actions, were sufficiently large to consume the whole proceeds of the property attached.

The verdict was then unquestionably right, if the opinion of the judge, excepted to at the trial, was correct; viz. that no overt act was necessary to constitute an attachment, the sheriff having previously in his possession or custody ihe property, upon another attachment. That such is the law, we have no doubt; and the practice has uniformly conformed to it. It has its inconveniences, particularly in exposing officers to the temptation of preferring favorite [ * 186 ] creditors, when several writs are put into their hands, * with a view to cause the same property to be attached. But the law has been long enough known, to attract the attention of many successive legislatures; and it remains unaltered.

It is in the power of parties to protect themselves, in some measure, from fraudulent practices, by demanding of the officers, when about delivering a writ to him, whether he has any other writs in his possession, or has made any prior attachments.

It has been suggested that, as the writ in favor of Goddard, upon which the second attachment was made, had endorsed upon it a special direction to attach other property, the officer was not bound to attach the vessel, and might lawfully, on that account, have postponed Goddard’s attachment to the plaintiff’s. But allowing he was not bound to attach the vessel, yet having done it, although without a special direction, he would have been liable to Goddard, had he knowingly done any thing to impair the effect of the attachment. A special direction may justify the officer for not going beyond it; but it does not deprive him of the legal authority to obey the general command in the precept, to attach sufficient to secure the demand, if he has opportunity to do it, and chooses to avail himself of it.

Judgment on the verdict  