
    William Gordon versus Peleg Jenney.
    Where an officer enters a store, wherein there are goods helor gmg to one against whom he has a sufficient writ of attachment, declares his intention to attach them, and afterwards locks the store, retaining the key, the attachment is good against an attachment by another officer, he, or the creditor employing him, knowing of the prior attachment.
    One deputy sheriff may have replevin against another deputy of the same sheriff, for goods which he claims in virtue of a prior attachment made by him.
    A plaintiff" in replevin, retaining the articles replevied, until judgment in the suit, cannot claim damages for any depreciation in their value, during that period ; because he may sell them immediately, in such a manner as will ascertam their value, for which alone he is answerable on his bond.
    Where an officer had attached certain articles, and afterwards mixed them with other articles of the same kind, attached before, by another officer, upon a writ against the same person, he' lost the lien upon those articles, which he acquired by his attachment; and the other officer rightfully retained them.
    Replevin of sundry articles of merchandise. The defendant pleaded in bar, that the property in the goods was in one George Sisson. The plaintiff replied property in himself, on which issue was joined. Trial before Jackson, J., in May last, at Taunton.
    
    On the opening of the case for the plaintiff, it appeared that the goods had belonged to Sisson, and were attached * as his by the plaintiff, who was a deputy sheriff, at the [ * 466 ] suit of Ichabod Macomber and others ; and whilst they were in the possession of the plaintiff, as he alleged, by virtue of that attach ment, they were attached and taken by the defendant, who was also a deputy of the same sheriff, at the suit of certain other creditors of Sisson. The. counsel for the defendant objected that the action could not be maintained, under these circumstances, by one deputy-sheriff against another deputy of the same sheriff; and also that the special property in the plaintiff, by virtue of such an attachment, would not maintain the replication, in which the plaintiff had alleged the property in himself in general terms. These two obieo tians were overruled, and the questions reserved for the consideration of the whole Court.
    The principal question submitted to the jury was, whether the plaintiff had made a legal and valid seizure of the goods, when making his supposed attachment; and whether he had retained the possession of them, so as to prevent or defeat the subsequent attachment made by the defendant. On this point, the evidence was, that the plaintiff went into Sisson’s store, containing the goods, and being there with no other persons but Sisson and the attorney of Macomber, he locked the door on the inside, and declared that he attached all the goods that were there. A negotiation then took place between the attorney and Sisson, in which the latter proposed to furnish security for the demand in suit, in order to relieve his goods from the attachment. During this negotiation, and while Sisson was abroad endeavoring to obtain some person as his surety, the plaintiff locked the store on the outside, taking the key with him, and went to find the attorney, who had before given him directions to take an inventory of the goods, if the proposed security was not furnished by a certain hour. No security being obtained at the hour appointed, and the plaintiff, with the attorney, being in Sisson’s [ * 467 ] house, the defendant came in, and said he * had attached the goods in question ; and it appeared that Sisson had furnished the defendant with another key, with which to open the door; by means of which he had entered the store in the plaintiff’s absence, and taken possession. The deposition of Sissoti contradicted many of the facts above stated. The whole evidence was left to the jury, with instructions that if the plaintiff entered the store for the purpose of attaching all the goods therein, having a sufficient writ for that purpose; and then proceeded as the evidence on his part tended to prove that he did, and remained in the stoic with the view of holding the goods by such attachment; this was a valid and sufficient seizure, or taking of the articles in question, to nake good his attachment thereof; and that, if he went away for a short time, still intending to retain his possession of the goods, and io hold them under the attachment, and for that purpose received the key of Sisson, and locked the door, retaining the key until he should return to take an inventory of the goods, this was a sufficient ío’aining of the possession and attachment of the plaintiff to pre vent and defeat the subsequent attachment by the defendant.
    The plaintiff claimed damages for the depreciation in the value of the goods, from the 5th of February, 1819, when they were taken by the defendant, to the time of the trial. On this point it appeared that Macomber, and others, at whose suit the plaintiff attached the goods, might have obtained judgment in their suit at the first term in April, 1819; but they had continued the action for judgment until the trial of the present action, and caused the goods to be kept, ready to be restored to the defendant, if such should be the final judgment in this suit. The judge, doubting as to t! e legality of this claim, instructed the jury with a view to prevent the necessity of a new trial on this point, in case they should find a verdict for the plaintiff, to assess damages for such depreciation from April, 1819, to the time of the trial. The jury returned a verdict for the plaintiff, assessing his damages at 400 * dollars. If the Court should be of opinion that the [ * 468 ] plaintiff was not entitled to damages on the principle above stated, the verdict was to be set aside in that particular, and the plaintiff to take judgment for nominal damages only, or to have a new trial to prove his damages, upon such principles as the Court should prescribe. If the Court should be of opinion that any other opinions or directions, given by the judge on the trial, were wrong, the verdict was to be set aside, and a new trial granted.
    There was also a question reserved in behalf of the plaintiff. It appeared that when he made his attachment, there were certain articles of Sisson’s goods, standing outside of the shop, by the door and windows, being put out, in the usual way, as a sign or advertisement of what he had to sell. These had not been touched by the plaintiff; but when the defendant came to make his attachment, he took these articles into the shop; and they, being of the same description with goods already there, it was impossible, on the trial, to identify them. The defendant claimed a verdict for these articles. The judge was of opinion that the defendant had dissolved his attachment as to these, or had lost his right to hold them, by intermixing them with the plaintiff’s goods, in such a manner that they could not be distinguished and separated. But as there was some evidence of the description and value of the articles which Sisson usually had outside of his shop, the judge directed the jury, in order to prevent a new trial on this point, to find a verdict for the defendant as to such and so many of the articles replevied, as they had reason to believe, from this evidence, to have been outside of the shop at the time of the plaintiff’s attachment. The jury accordingly found a verdict for the defendant for certain articles, which were specified in the verdict; the defendant agreeing to have this part of the verdict set aside, if the Court should be of opinion that he could not lawfully retain those articles, and that these should be included in * the verdict that might finally be [ * 469 established as to all the other articles.
    
      W. Baylies and L. Williams, for the plaintiff.
    
      
      B. Whitman, for the defendant.
   Parker, C. J.

The principal question in this case has been before the Court in the case of Denny vs. Warren. In that case, as in this, it is decided that if an officer enters a store where there are goods belonging to the debtor, having a writ requiring him to make the attachment, and declaring his intention to attach them, and then, for the purposes of convenience to the debtor, or for the furtherance of his object, locks the store and keeps the key in his possession, he has a right to claim and hold the goods against any other officer who may have subsequently entered the store for the purpose of making a second attachment, he, or the creditor, knowing of the prior attachment. It will always be a question of fact, whether the officer, who made the first attachment, had abandoned it, or had conducted so negligently as to forfeit his rights under it. The jury were properly instructed by the judge in the case before us, and the evidence fully warranted their verdict.

The objection, that one deputy sheriff cannot maintain an action against another deputy of the same sheriff, cannot prevail. Although servants of the same master, they act independently of each other; and the one who first makes an attachment acquires a special property, which entitles him to an action against any person who interferes with his possession.

Upon the point of damages, we think the rule which the jury were permitted to observe, in order that the question might be settled, was not correct. The plaintiff in replevin gets possession of the goods, and has given bonds to restore them in case judgment should be against him. He is eventually answerable only for their value. He may sell them, if the price suits him, or he may keep them, to return in specie. They are delivered to him [ * 470 ] upon the * writ, on his assertion that they are his property ; and he has it in his power to deal with them as such. Were it in his power to keep them on hand, through a long process in court, at the risk of the defendant in replevin as to their fall in value, much mischief would ensue.

Any deterioration of the goods, while in possession of the defendant after the unlawful taking, is a proper subject of damages. But after they are restored, if they should be injured, decayed, or otherwise impaired in value, it must be at the plaintiff’s risk, if he prevails in the suit, however long the process may continue ; because he may always convert them into money, under such circumstances as will furnish proper evidence of their value, when he comes to be answerable upon his bond, or he may keep them in possession at his election.

As to that part of the verdict which relates' to the articles without the store, which were taken by the defendant, and afterwards mixed with the other goods, we think it must be set aside. If the defendant acquired a special property in them, he lost it by mixing them with those previously attached by the plaintiff; so that these, also, were returned as attached by him.

The verdict must be altered so as to stand for five dollars, instead of four hundred; the residue of the verdict to be set aside, and judgment entered for the plaintiff, upon the verdict thus corrected.  