
    Benjamin Bayley, Administrator, versus Caleb French. David Prouty versus Caleb French.
    An officer attached the same goods, first on a writ of B, and then on a writ of P, and sold them on B's execution, and by his direction, upon a credit of six months, re taming the goods as security, The purchaser failed, and the officer afient ards, by direction of P, sold the goods on P's execution for ready money. Held that the first sale was invalid and that a note given to B by the officer for the proceeds was without consideration; and that P was entitled to have the money received on the second sale applied to his execution; but that the officer was not liable to the penalty of 30 per cent, for detaining the money, his refusal to pay it over being not unreasonable, so long as the conflicting claims of B and P remained undetermined.
    The first of these actions was assumpsit upon a promissory note, dated the 3d of April, 1821, payable by the defendant to the plaintiff Bayley, in six months, with interest.
    At the trial, which was upon the general issue, the defendant attempted to prove that the note was given without any consideration. It was proved that Bayley made the first attachment upon certain machinery and other personal estate, as belonging to Joshua Stetson, which had been previously attached by one Welsh, as partnership property of Stetson and one Perry, and which was subsequently attached by Prouty as the property of Stetson. Bayley obtained an execution against Stetson for about 361 dollars, which he put into the hands of the defendant, who was a deputy sheriff, the attachment being then in full force. Bayley gave the defendant a bond of indemnity against the claims of the creditors of Stet son and Perry, and agreed with him, that he should sell the property on a credit of six months ; which he did on the 13th of September, 1820, for 400 dollars. The defendant’s return stated that he had exposed the property for sale, “ upon the following conditions, that is to say ; — Cash when delivered.— To be delivered within six months, provided the other actions are dispensed with, &c. ; about which said actions a dispute has already arisen, which will have the priority at law. Said conditions of sale were agreed and assented to by the judgment creditor ; and James Warwick being the highest bidder, the same were struck off to him, &c., and the same machinery so sold as aforesaid I now hold and detain in my possession, to be delivered according to the conditions of sale when complied with.” The defendant paid 70 dollars for storage. The purchaser failed before the expiration of the six months, and never paid for the goods, and according to the agreement of Bayley, the defendant, and the purchaser, they remained in the hands of the defendant, until the 1st of May, 1821, when by direction of Prouty he sold them to satisfy an execution which Prouty obtained against Stetson. On this sale they produced 152 dollars more than the amount of storage above mentioned. The defendant acted with good faith, and with a desire to sell the property to the most advantage. The note was given on account of Bayley’s claim arising out of the transactions of the defendant in relation to the sale of the property on his execution, as before mentioned, and no other consideration was proved.
    A verdict was taken for the defendant, subject to the opinion of the Court.
    In Prouty v. French, which was an action of trespass on the case brought by Prouty against the defendant as a deputy sheriff for neglecting to pay over to him the amount of his ex cution, (about 152 dollars,) and in which Prouty claimed 30 per cent, on account of the detention, the same facts appeared in evidence. It also appeared that Prouty gave the defendant a bond of indemnity, and directed him to levy on the property, notwithstanding the previous attachment of Welsh and the previous levy of Bayley; that if the property had been sold for cash on Bayley’s execution, it would probably not have produced more than 250 or 300 dollars, instead of 400 ; and that Prouty demanded the amount of bis execution after the defendant had received the money for the goods sold.
    A verdict was taken in favor of Prouty, subject to the opinion of the Court, for the amount of his execution, with 30 per cent, damages for the detention.
    
      Beal for the plaintiff Bayley.
    
    Was the general property of Stetson divested by the first sale ? If it was, the note sued is founded upon a sufficient consideration. The officer had a right to sell for ready money ; a fortiori, he had a right to wait for payment, by consent of the creditor, a longer or shorter time, provided the debtor was not injured thereby. If the purchaser, on the day of the sale, had given his note to the officer, payable in six months, and had immediately, with the officer’s consent, taken the goods into his possession, and had sold or pledged them to a third person, neither Stetson, nor his creditors, could have had any claim to them. At what time the officer should receive payment was immaterial to Stetson, as the officer was liable to account to him immediately for the sum for which the goods were sold. The fact that the purchaser never paid for the goods, could not revest the property in the original owner. For suppose the goods had been sold for cash and an actual delivery had accompanied the sale, and immediately after the sale and before the money was received, the officer had paid Bayley and discharged the execution, and afterwards should fail to obtain the money of the purchaser; this would not restore the property to Stetson, but he would have a right to call on the officer to account for the sum for which the goods were sold ; and if the creditor consented to the delivery of the goods before the price was paid, he and the officer would have to adjust the loss, if anv. uetween themselves. Suffering the goods to remain in French’s hands was the same thing, in effect, as if the purchaser had pledged any other goods to secure the demand. The purchaser was liable to oe sued by French at any time after the expiration of the six months, for the case does not find that there was to be no sale unless the goods were paid for within that period. It appears then that the goods, when seized and sold on Prouty’s execution, were not the property of Stetson, and the officer may show this fact in bar of Prouty’s action against him. Fuller v. Holden, 4 Mass. R. 501 ; Tyler v. Ulmer, 12 Mass. R. 169. If, however, in consequence of his proceedings on Prouty’s execution, he is estopped to make that defence, the estoppel cannot affect Bayley, who was a stranger to those proceedings, unless the officer was under a legal obligation to seize and sell the goods, on Prouty’s execution, as the property of Stetson.
    
      W. Baylies urged, on the part of the defendant,
    that if the goods had been sold for cash on Bayley’s execution, they would not have produced enough to satisfy that execution, with the incidental expenses, so that no one would be prejudiced by the sale on credit, except the debtor, and as in fact the sale was beneficial to him, his assent was to be presumed. That sale therefore was valid to divest the property of the debtor ; and it is competent to the defendant, in the suit of Prouty, to show that the goods when last sold did not belong to Stetson. Fuller v. Holden and Tyler v. Ulmer, before cited, and Ladd v. Blunt, 4 Mass. R. 402. As Prouty’s attachment was subject to the lien of Bayley, and as nothing would have remained for him in case the defendant had complied strictly with the law, he is at most entitled to nominal damages only. Rich v. Bell, 16 Mass. R. 294. If Prouty however has a good claim against the defendant, then as the sale on credit, which must in such case be considered as illegal, was made by direction of Bayley, the note given by the defendant was without consideration.
    M. Morton, for the plaintiff Prouty,
    
    contended that the first sale was conditional, and upon credit, and on both accounts unauthorized by St. 1783, c. 57, § 5. There was no delivery of the goods, and the sale was made without the consent of the debtor, unless it is to be presumed. Such consent however would be of no avail, because the attachment of Prouty intervened between the first aUachment and the sale. The property therefore remained in the debtor at the time when Prouty’s execution was levied. He cited Lane v Jackson, 5 Mass. R. 157 ; Caldwell v. Eaton, ‘bid. 399 , Warren v. Leland, 9 Mass. R. 265.
    
      Beal, in reply, said that the first sale was aosolute ; that there was a constructive delivery of tjie goods, and if not, that the property in them was nevertheless changed ; Hinde v. Whitehouse, 7 East, 558; and that the present case was not so strong as Rich v. Bell, 16 Mass. R. 294, for there the officer sold without any precept, and it was held to change the property.
    The opinion of the Court in the case of Prouty v. French was delivered at May term 1825, at Plymouth, by
   Parker C. J.

The question arising on the report is whether, at the time of the levy of the plaintiff’s execution upon the goods in the possession of the defendant, the property in them was in the debtor, or whether it had been changed by the sale so as to pass to the purchaser on the sale under Bayley’s execution. And we are of opinion, that under the circumstances of that sale no property in the chattels passed to the purchaser.

It appears that the sale was on a credit of six months, by agreement between Bayley the creditor and the defendant, who was the officer that held the execution, and that the goods were retained by the officer after the sale, and were to be kept by him as security until the money for which they were sold should be paid. No authority for such proceedings is given expressly or can be inferred from the statute of 1783. c. 57, which directs the issuing, extending and serving of executions.

It is contemplated by that statute, that the sale shall be completed within four days from the time when the goods are seized, and the surplus after satisfying the execution is to be immediately paid over to the debtor. In the case before us no money was paid by the purchaser, nor even any security given, but the goods are kept as they were before the jale, in the hands of the officer, at the risk of the purchaser’s responsibility, or of the fall in the price of the goods, and also at an expense for storage, which it was one of the objects of the legislature to avoid by requiring a speedy sale.

There being no price paid for the goods, and no delivery of them, this was not a sale but a mere contract to sell, which the officer was not authorized to make, so that the goods remained the property of the debtor until they were taken to satisfy Prouty’s execution, the previous attachment and levy of Bayley having ceased to operate ; so that Prouty is entitled to the proceeds of the last sale to satisfy his execution.

It is true that when the goods of a debtor are seized m execution, it is a payment pro tanto to the value of the goods, whether the officer lawfully dispose of them or not, but this is a privilege which the debtor may waive, for if the officer convert the goods to his own use or otherwise unlawfully dispose of them, without doubt trespass or trover will lie for the debtor ; in which case perhaps his debt remains.

The claim of the plaintiff for the penalty of thirty per cent, upon the sum for which the goods were sold, we think ought not to be allowed ; because it appears by the report of the case, that the defendant acted honestly in supposing that the execution of Bayley had priority, and that he did not retain the money for any unlawful purpose or with intent to apply it to his own use. The penalty established by St. 1783, c. 57, § 3, is to be enforced, where the officer shall unreasonably refuse or neglect to pay over money received on execution, after a demand. We think, under the circumstances of this case, it was not unreasonable to detain the money, until the claim on him by Bayley should be adjudicated on, and that the amount of Prouty’s execution, with simple interest, is the proper measure of damages.

The Chief Justice also, at the same term, delivered the following opinion of the .Court in the case of Bayley v. French. The note upon which this action was brought, was given for the amount of an execution in favor of the plaintiff against Joshua Stetson, on which the defendant had seized certain chattels of Stetson and exposed the same to sale, but sold them on a credit of six months, and kept the goods on hand as security for the purchase money. They were after-wards taken on execution by another creditor and again sold for a much less sum than at the first sale, so that if the second sale is valid there is nothing left in the hands of the defendant to go towards satisfying Bayley’s execution.

It has been decided in the case of Prouty v. French., that the first sale was void and the second valid, so that the defendant, if he is held liable on this note, will lose the whole amount; and it would be just that he should, if he had proceeded in this strange manner of his own head, without the consent of Bayley. But it being found that he acted in this respect with the advice and consent of Bayley, he ought not to be held liable on the note, any more than he would in an action against him for misfeasance in relation to the execution. The consideration of the note has failed by circumstances caused by Bayley, as well as by the defendant; indeed the defendant was only the agent of Bayley and acted under his directions ; it would therefore be inequitable, as well as unlawful, for Bayley to exact payment of the note. 
      
      
        Tillotson v. Grapes, 4 N. Hamp. R. 444 ; Greenloaf v. Cook, 2 Wheat. 13 ; Bliss v. Negus, 8 Mass. R. 46 ; Still v. Hood, 15 Johns. R. 230, Hawley v. Beeman, 2 Tyler, 238 ; Jackson v. Warwick, 7 T. R. 121 ; Hills v. Bannister 8 Cowen, 31 ; Harlan v. Read, 3 Ohio R. 285 ; Delany v. Vaughan, 3 Bibb 379 ; Walace v. Barlow, ibid. 168.
     