
    Calvin Merrill versus Lyman Sawyer and Nahum Bryant.
    The return of an officer that he hag attached certain property, is not of itself suffi* cient evidence of an attachment in fact, in a suit against him by another officer claiming to have attached the same property. [See p. 398, note *].
    Where a deputy sheriff returned on a writ, that on the day specified he had attached hay in the defendant's barn, ins declaration on the same day, while he was at work on a fence near the barn, that he had attached the hay and was then watching it, was held inadmissible to prove the attachment, it not being a part of the res gestee.
    It is a sufficient attachment of hay in a barn, for the officer to go within view of it, declare that he attaches it and post on the barn-door a notification of the attachment.
    Trespass for talcing a quantity of hay, which the plaintiff attached as a deputy sheriff, on a writ against Norman Smith.
    At the trial, before Morton J., the plaintiff produced the writ with his return on it, both dated December 17, 1825 ; also several witnesses, who testified that about 6 o’clock on the evening of that day, which was Saturday, the plaintiff went in view of the hay, which was in Smith’s barn, and declared that he attached it; that the plaintiff placed on the barn-dooi a written notice that he had attached the hay ; but that he did not remove any of it.
    It was proved that Sawyer removed the hay from Smith’s barn on the next Monday before sunrise, and that after the removal he was notified of the attachment by the plaintiff.
    The defendants claimed the property by virtue of a previ pus attachment by Sawyer, who was also a deputy sheriff, and in proof of the attachment produced a writ against Smith with Sawyer’s return on it, both dated December 16, 1825. They also proved, that at 7 o’clock on Saturday evening Sawyer informed the plaintiff that he, Sawyer, had previously attached the property, and forbade the plaintiff’s removing it.
    The defendants offered to prove by a witness, that on December 16th he saw Sawyer at work on a fence by the roadside, opposite to the barn and in view of it; and that Sawyer then told the witness, that he had attached the hay in the barn and was then watching it. But the evidence was rejected.
    The judge charged the jury, that Sawyer’s return was not, of itself, sufficient evidence of the attachment by him.
    
      The jury found a verdict against Sawyer, but in favor 01 ^le other defendant ; and Sawyer moved for a new trial on account of the misdirection of the judge.
    
      Sept. 22J.
    
    Bigelow, for the defendants,
    contended that Sawyer’s return was sufficient evidence of the attachment, at least prima facie. Bean v. Parker, 17 Mass. R. 601. The evidence of the declaration of Sawyer which was rejected, should have been received as part of the res gestee. 1 Stark. Ev. 49. The evidence of an attachment by the defendant, was as good as that of an attachment by the plaintiff.
    
      J. II. Ashmun, for the plaintiff.
    
      Sept.25th.
    
   Parker C. J.

delivered the opinion of the Court. By the report it appears, that the only ground taken for a new trial was the supposed misdirection of the judge to the jury, in stating that the return on the writ by Sawyer was not of itself sufficient evidence of an attachment. It certainly was not, against an officer claiming to have attached the same property.

But it is evident there were other points intended to be taken in relation to the validity of both attachments. The attachment made by the plaintiff'on Saturday was valid, if there was no lawful lien upon the property at that time. He went within view of the hay with his writ, declared that he attached it, and posted a notification to that effect on the barn-door. There was then no person present claiming the possession of the hay. The question then is, whether the defendant Sawyer had before made a lawful attachment, as the return of the writ imports. There is no evidence, apart from his return, of any act done by him. He was seen, on the evening of Saturday, working on a fence between the debtor’s house and barn ; and he told the person offered as a witness, that he had attached the hay and was watching it. This evidence was rejected ; and we think, rightly, as it was only the declaration of the party, unaccompanied by any act tending to show an attachment, and therefore does not come within the exception to the rule which excludes the declaration of parties, as being part of the res gestee.

Nor was his notice to the plaintiff, that he had attached the hay, of any avail, it being given after the plaintiff had made his attachment.

Motion for a new trial overruled. 
      
       See this case explained in Bruce v. Holden, 21 Pick. 190; where it is said that both of the returns were primó, facie evidence of attachment, and that the first in point of time would have prevailed, but for other evidence showing that Sawyer had either failed originally to seize the property or to give publicity to his attachment, or had relinquished his possession.
     
      
       See Sanderson v. Edwards, 16 Pick. 146; Duncklee v Falest 5 N Hamp R. 528.
     