
    Phelps versus Campbell.
    Expenses incurred by an officer in supporting animals, attached upon mesne process by order of a plaintiff, may be recovered of such plaintiff, in case judgment is given in favor of the defendant, without an express promise by the plaintiff to in* demnify the officer.
    
    Thi s case came before the Court on the following statement of facts, agreed upon by the parties. The plaintiff, as sheriff of the county of Hampden, by virtue of a writ in the name of one Fowler against one Morgan, on the 27th Decemher 1819, attached four horses, the property of Morgan, who was present at the time of the attachment, but declined procuring them to be receipted for. The writ was purchased by Campbell, who was the real creditor in the suit, and this he made known at the time. Campbell delivered the writ to Phelps, and directed him to attach the horses; and he had the sole management of the suit until its termination in 1821, when judgment was rendered in favor of Morgan, upon the verdict of a jury. Phelps was at he trouble and expense of keeping the horses during the pendency of the suit. He did not, at the time of the service of the writ, require Campbell to give him an indemnity.
    If, upon the foregoing facts, the plaintiff had a right to charge the trouble and expense of keeping the horses to the defendant, then the defendant was to be defaulted ; if not, the nlaintiff was to become nonsuit.
    
      J. Mills, for the defendant.
    The question is, whether an officer who has directions to attach animals on mesne process can recover of the plaintiff in the suit the expenses of keeping them, no agreement having been made between the officer and the plaintiff, and the plaintiff having been ignorant that such expenses were accruing. At common law, when cat-e are distrained, the owner is bound to feed them. The same principle must be applied to an attachment of animals under our statutes. The officer has only to put the animals in a safe place, and the owner, after notice of the attachment, is bound to see to their support; and this is not unreasonable, because he may procure a receipter. If the animals die for want of food, the officer is not answerable. Sewall v. Mattoon, 9 Mass. Rep. 537. Had Morgan, after the termination of the suit against him, brought his action, if it could have been shown that the expense of keeping the horses had exceeded their value, he could have recovered but nominal damages. The officer was bound to serve the writ, even if Campbell had been a bankrupt, and so unable to give him an indemnity for keeping the horses. It is immaterial to the officer whether the plaintiff prevails or not; his right to recover his expenses of a defendant does not depend on the termination of the suit. If a defendant weie <n bring money into court, the judgment would not be stayed in order to settle the officer’s claim.
    Boise, on the other side.
    A plaintiff may give verbal direc tians to an officer, which the officer is bound to obey ; and if he obeys, there is always an implied contract that the plaintiff will indemnify him. It would be inconvenient if it were not so ; because frequently it is necessary that a writ be served immediately. The only case in which an officer may require a plaintiff to indemnify him for making an attachment, is, where it is doubtful whether the property belongs to the defendant. Marshall v. Hosmer, 4 Mass. Rep. 63; Bond v. Ward, 7 Mass. Rep. 126. An indemnity is never required for the expenses of keeping a defendant’s property. • No fees for such service are put down in the statute, commonly called the fee-bill, because such expenses are uncertain ; but it is the usual practice to charge such expenses as fees, and to have them allowed by the court. It is admitted that a defendant would be liable for the expenses of keeping his cattle, if judgment should be finally rendered against him, according to the case cited, of Sewall v. Mattoon. But here the judgment was in favor of the defendant. An officer is bound to make an attachment, and he cannot compel the owner of the property attached to procure a person to receive the property and become responsible for it; neither is the officer bound to deliver the property to any such person. In Tyler v. Ulmer, 12 Mass. Rep. 168, it is said, that the expense of keeping is always eventually a charge upon the debtor; for the officer, if he pays that expense, will deduct it from the proceeds, before he pays them over to the creditor. It is rather a charge upon the property attached, than upon the debtor; for if the expense of keeping should exceed the amount of the proceeds, the officer would not be bound to pay over any thing to the plaintiff; but, on the contrary, he would have a claim against the plaintiff for the excess ; and he would have no right to indemnify himself by attaching more property of the defendant’s. After judgment in favor of the defendant, the officer is bound to deliver him his property upon demand, or he will subject himself to an action of trover.
    
      J. Mills, in reply.
    The owner of animals attached is bound. after notice of the attachment, to support them, and if the officer supports them, he must be supposed to do so at the request of the owner. The officer, therefore, has a lien on the property, or he may bring his action against the owner on the implied contract. If it were the duty of the officer to support the animals attached, he might maintain an action like the present; but it is not his duty. He may charge to a plaintiff, as fees, any contingent expenses in making the attachment, but nothing more.
    
      
       See St. 1822, 6. 93
    
   Per Curiam.

There is no question of the right of the plaintiff in this action to recover. The defendant gave him a writ against Morgan, with special directions to attach the horses. The plaintiff accordingly attached them, and has paid the expenses of their keeping. It has been urged, and cases have been cited to prove, that a defendant is bound to support his cattle when under an attachment. This is true, where judgment is rendered against such defendant; but in the suit against Morgan, the judgment was given in his favor. Campbell has been the cause of the expenses incurred by the officer, and he is bound to reimburse him.

Defendant defaulted. 
      
       See Twombly v. Hunewell, 2 Greenl. 221.
     