
    William Almy and Another versus Samuel Wolcott.
    Where, upon an original writ, property was attached by direction of the creditor, and, between such attachment and the completion of the service by the delivery of a summons, the debtor was arrested and held to bail on the same writ, but without the direction or knowledge of the creditor, the attachment was held good against an after attachment of the same property by another creditor, notwithstanding the intermediate arrest.
    This was a writ of Entry sur disseizin, in which the demandants counted on their own seizin, and on a disseizin by the tenant.
    The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice ; from whose report it appeared, that the demandants claimed under an extent of two executions upon the demanded premises, which issued upon judgments recovered by the demandants, at the Court of Common Pleas, January, 1815 ; the one against one John Folsom, then the owner of the demanded premises, for $ 402-72, and the other against said Folsom and one George «/?. Rogerson, his partner in trade, for $1693-07. The tenant also claimed title to the demanded premises by-force of the levy of his execution against said Folsom, * issued upon a judgment recovered by him at the same court.
    The following facts were in proof at the trial. The extent of all the said executions was regularly made, and within thirty days after the respective judgments were rendered ; the demanded premises having been attached upon mesne process in each case. The attachments on the demandants’ original suits were made half an hour before the tenant’s attachment; and must be deemed to have priority, unless' the subsequent service on the writs of the demandants destroyed their attachments, or gave priority to that of the tenant.
    On the 31st of October, 1814, the demandants sued out their said two writs, and caused directions to be put on the back of each of them as follows ; — “ Mr. Officer, you are directed to attach sufficient — per order.”—The writs were then delivered to L. Baldwin, a deputy, sheriff of this county, who attached the demanded premises, and the goods in the store of the said Folsom fy Rogerson, and made a minute as follows, on the back of each writ;—“ Oct. 31st, half past 7, A. M., attached in store,—45 m. past 7, attached house in Charles street. L. B.”—In this situation the writs were sent to one S. Blaney, a deputy sheriff of Norfolk county, without any particular directions, as he testified, what kind of service to make. Finding no property, he arrested Folsom, and returned, on both the writs, that, Oct. 31st, 1814, at 12 o’clock at noon, he arrested the body of said Folsom, and held him to bail.
    When the demandants’ attorney learned what service Blaney had made, he immediately informed him that the service was contrary to their wishes, as the object was to get property ; and he directed Blaney to go and tender the bail bonds to Folsom, which he accordingly did ; but Folsom declined receiving them after summonses were given to him and Rogerson by Baldwin, who made his return accordingly.
    At the term of the court at which the said writs were * returnable, the bail of Folsom surrendered him on the demandants’ two writs, and he was within the limits of the jail-yard about a fortnight, when he was discharged by the demand-ants’ attorney, previously to the levy of their executions. The demandants did not order the arrest of Folsom ; but, after it was done, did every thing in their power to vacate or destroy the effect of that service ; and showed a constant intention to rely solely on their attachment of property.
    If, on these facts, the Court should be of opinion, that the demand-ants’ attachment of Folsom's property was rendered - void by the arrest of his person, and taking bail ; or that it gave a prior right to the tenant’s subsequent attachment of the same property, then the verdict returned for the demandants was to be set aside, and a general verdict entered for the tenant; otherwise, the verdict was to stand, and judgment be rendered accordingly.
    
      Peabody, for the tenant,
    argued, that the arrest of the defendant, after the attachment of bis estate, and before the service of the writ was completed by a delivery of a summons, avoided the attachment. The writ could not be used both as a capias and as a writ of attachment. The service being incomplete at the time of the arrest, the previous attachment was waived thereby ; which being of itself a .complete service, the leaving of the summons was of no effect, but a mere nullity, and so the service by attachment was never completed. The intentions and wishes of the plaintiffs could have no operation to alter the legal effect of their actions. 
    
    Dutton, for the demandants.
    
      
      
        Watson & al. vs. Todd & al., 5 Mass. Rep. 273.—Bond vs. Ward, 7 Mass. Rep. 123. — Brinley vs. Allen, 3 Mass. Rep. 561.
    
   Curia.

The objections, made to the title of the demandants, rest upon a mistaken opinion of the effect of the original attachment made by the demandants. We must consider that attachment as made at the time the return bears date ; although a memorandum only was then made of it. The arrest, subsequently made by the officer of the county of Norfolk, was void, because an attachment of property had been previously made. The service of the summons was * necessary to complete the attachment; but that service, being afterwards seasonably made, had relation to the time of the attachment.

We cannot admit, that a creditor, having obtained security for his debt by an attachment of property, can be defeated of this security by a subsequent service of the same writ, in a manner which he did not direct. The direction upon the writ was sufficient to notify the officer that an arrest was not desired. The common direction is, to attach sufficient property or hold to bail. The alternative being withholden, in this case, it was not easy for the officer to mistake the creditor’s intentions.

If the debtor has been injured by the arrest, be has his remedy by an action of trespass ; but there is no reason why an attachment, seasonably made by one creditor, should be avoided by another, by any thing done subsequently to the attachment, without the direction or consent of the attaching creditor.

The circumstances reported in the case, which go strongly to show a collusion between the second attaching creditor and the debtor, in order to supersede the first attachment, will be important, in case the debtor should sue for damages for the unlawful arrest of his body.

Judgment according to the verdict.  