
    Daniel Denny et al. versus Calvin Willard.
    Where an officer, having attached goods, delivers them to a third person, taking his accountable receipt, and the receipter delivers them up to the debtor, the debtor may make a valid sale of them, whether they remain bound by the attachment or not.
    If they remain bound by the attachment, the general property will pass by the sale, subject only to the lien.
    And the receipter himself, as well as a stranger, may be the purchaser.
    If the officer, after having delivered the goods to the receipter, returns on the writ of another creditor a subsequent attachment of the goods, he cannot contradict such return and deny that he made a valid attachment; but, in general, he may prove that the property in the goods was in a stranger and not in the debtor.
    Thus, where the receipter took from the debtor a bond Jide assignment of the goods, for an adequate consideration, and afterwards the officer returned on the writ of a second creditor, simply that by virtue of the writ he had attached the same goods, and there was nothing in such creditor's instructions which would make the officer responsible for the ownership of the goods, it was held, that the officer might prove the assignment in defence of a suit against him for neg lecting to levy such creditor's execution upon the goods.
    The goods not being bound by the second creditor's attachment, it was held, that he could have no claim upon any sum paid by the receipter to the officer in discharge of his receipt.
    This case, which was an action against the sheriff of Worcester county, was submitted to the Court upon a statement of facts.
    The plaintiffs, on October 2, 1828, sued out their writ against one Holt, and on the same day delivered it to Joseph Upham, one of the defendant’s deputies, to be served. Up-ham returned on the writ, that by virtue thereof he on the same day attached all the right and interest of Holt in a certain parcel of land, subject to two previous attachments made by him, one in favor of Farnsworth & Phipps, the other in favor of E. Patterson ; also certain goods, the kinds and quantities of which were specified in the return. In December 1828 the plaintiffs recovered judgment against Holt, in the Court of Common Pleas, for $789-81 damages and $11-99 costs of suit, and execution for those sums was issued and, within thirty days from the day of the rendition of the judgment, was delivered by the plaintiffs to Upham to be levied. Upham did not levy the execution upon the personal property above mentioned, or on any part of it. Holt has ever since Deen insolvent, and the plaintiffs’ judgment remains unsatisfied for $ 559-93.
    It was further agreed, that the following facts should be a part of the statement of the case, if it was competent for the defendant to offer testimony in support of them. The property which Upham returned on the plaintiffs’ writ that he had attached, had been previously attached by him on two writs, one in favor of Farnsworth & Phipps, the ether in favor of E. Patterson. When he made the attachments in favor of Farnsworth & Phipps and Patterson, the personal property was not' taken into his actual possession, nor was it removed, but one Powers gave him an accountable receipt for the same, and it was all left in the occupancy and possession of Holt, in his store then kept by him.. After these two attachments had been made and before any other writs came into the hands of Upham, Powers, to indemnify himself against his accountable receipt, and to secure himself against other liabilities incurred by him as surety for Holt, tpok a general assignment, without the knowledge of the plaintiffs, of Holt’s property, including the goods before mentioned, and immediately took possession thereof, and the property was never afterwards out of his hands. The validity of this assignment was not to be called in question in this case, unless it was invalidated by the facts offered to be proved by the defendant.
    After the assignment, one Jones and one Cutler respectively sued out writs against Holt, on which Upham returned an attachment of the goods before mentioned. The suing out of the plaintiffs’ writ against Holt was subsequent to the return of the attachment in favor of Jones and Cutler. Judgment was afterwards rendered in Jones’s suit for the sum of $248-41, and-in Cutler’s, for the sum of $134-95. Executions were taken out on those judgments, and within thirty days from the rendition thereof were committed to Upham for service. The personal property was never sold by Upham, but Powers, in order to get up his accountable receipt, paid to Upham the sum of $ 804, which was the full value of the property. A part of this sum, viz. $219-45, was applied by Upham towards the satisfaction of the judgments in favor of Jones and Cutler. The residue, being $584-55, was applied by Upham to the payment of the claims of Farnsworth & Phipps, and Patterson. Their writs were never entered in court, but the amount paid by Upham would have been recovered with additional costs, if their demands had not been so settled. The goods were not of sufficient value to satisfy all the demands for which suits were commenced as before mentioned, but if the sum of $ 584-55 had not been applied as above stated, there would have been $ 520-64 more than sufficient to satisfy the judgments of Jones and Cutler.
    Holt’s right in equity in certain real estate was attached by Upham on the writs of Farnsworth & Phipps, and Patterson. It was not attached on those of Jones and Cutler. It was afterwards attached in several intermediate suits, and then on the plaintiffs’ writ. This right in equity was sold on execution for $750, part of which was applied to the satisfaction of executions where the attachments were made on writs subsequent to the attachments in favor of Farnsworth & Phipps, and Patterson, and prior . to that in favor of the plaintiffs, and the residue, being $241-87, was applied towards payment of the plaintiffs’ execution.
    A nonsuit or default was to be entered, as the Court; should determine on the foregoing statement.
    The cause was argued in writing.
    Burnside, for the plaintiffs.
    1. It is not competent to the defendant to prove any of the facts in the statement in this case.
    There are, substantially, but two facts proposed to be proved. The first is, that previously to the receipt of the plaintiffs’ writ by the deputy sheriff, all the personal property returned on it had been attached by him.on four writs, and that it was all absorbed in satisfaction of the claims of those prior attaching creditors. This fact is palpably contradictory to his return on the plaintiffs’ writ, in which he states no prior attachment of the personal property. If the returns of officers are not to be takén as true and conclusive against them, they furnish no evidence to a creditor, of the condition of his debt, but serve rather to mislead and deceive him. Had the whole truth been stated in the return, the plaintiffs might have otherwise secured their debt or, at least, night have avoided the costs of a fruitless prosecution of their action. But this objection rests not alone upon the argumentum ab inconvenienti ; it is well sustained by the case of Gardner v. Hosmer, 6 Mass R. 325.
    The second fact offered to be proved is, that prior to the receipt of the plaintiffs’ writ, and prior also to the service of those of Jones and Cutler, Holt had assigned the property in ' question to Powers. This fact too contradicts the return, and it is likewise contradictory to the other facts proposed to be proved. For if attached, the property was in the possession, actual or constructive, of the deputy sheriff, and therefore could not have been legally assigned, inasmuch as Holt had no such possession as would enable him to make delivery to the assignee.
    But suppose the property to have been legally assigned, if Upham knew the fact, and yet attached the property without instructions and without indemnity from the plaintiffs, he did it upon his own responsibility, voluntarily and unnecessarily assumed, and he is therefore estopped from urging the assignment in excuse for not satisfying their execution. Bond v. Ward, 7 Mass. R. 123. The case would be different, if the property were found and attached under circumstances authorizing a reasonable belief in the officer that it belonged to the debtor, or if it were shown to him as such by the creditor. Fuller v. Holden, 4 Mass. R. 498.
    If, on the other hand, Upham did not know of the assignment by Holt, when he served the plaintiffs’ writ, it is manifest that Powers could not set it up against his own receipt; having given no notice to Upham to admonish him against returning other attachments of the same property ; and if he could not avail himself of it against Upham, much less can Upham, against the plaintiffs, in excuse of his conduct.
    2. The whole statement of facts, if admitted, furnishes no justification for the conduct of which we complain as a breach of duty.
    The assignment, if valid, only created a lien in favor of Powers to indemnify him against his receipt to Upham and some other liabilities. So soon as these liabilities should be removed by Holt, this property would revert to Holt; it was not then an absolute conveyance. Now it was competent fot Powers to relinquish his lien on that portion of the property which Upham had attached, and the very fact offered to be proved is, that he did relinquish it ; that he delivered the property to Upham, pursuant to his receipt, for the express purpose of permitting it to be taken in execution ; or what was the same thing, that he paid Upham its full value in money, in discharge of his liability as bailee. If such were not his intention, he would have paid Upham only $584-55, that is, a sum sufficient to satisfy the two first attachments, which were made before the assignment. The conduct of Powers is irreconcilable with the pretence of Upham, that Powers held the property otherwise than as bailee. What right then has Upham to interpose between the plaintiffs and this property, an assignment under which Powers neither did nor could claim ? Upon the supposition that no legal attachment was made after the assignment, the plaintiffs’ execution being in Upham’s hands as early as those of Cutler and Jones, they were entitled to at least one third of the sum of $ 219-45, if not to a proportion corresponding with the relative magnitude of their debt. If the whole of that sum was paid to Cutler and Jones because they had a lien by attachment, then is the pretence of an assignment abandoned.
    The defendant however seems to admit that the property was Holt’s and subject to his debts, and contends that be has appropriated it all in discharge of those debts which were secured by attachments before the service of the plaintiffs’ writ. But admitting his right to prove that there were attachments before ours, he was not justified in applying the avails of the property in discharge of the claims of Farnsworth St Phipps, and Patterson. Those creditors never delivered to Upham any execution, nor obtained any judgment, and their liens might have been lost in various ways, by neglect, inadvertence or design. Danielson v. Andrews, 1 Pick. 156; Willis v. Crooker, ibid. 204 ; Watson v. Todd, 5 Mass. R. 271. It was the duty of Upham to keep the property in the custody of the law, and to apply it only on executions duly issued and seasonably delivered to him. The sum then of $ 584-55, as well as the other sum of $ 219-45, ought to have been applied m satisfaction of the executions of Cutler, Jones and the plaintiffs ; which would leave due only $39*29, a sum equal to the only benefit the defendant could derive from proving the four prior attachments ; but if such evidence is inadmissible, as we contend it is, then the plaintiffs’ damage will be $559*93, with interest.
    
      J. Davis and Merrick, for the defendant,
    cited to the point that the debtor might sell the goods after they were restored to his possession, Knap v. Sprague, 9 Mass. R. 258 ; and to the point that an officer has a right to show that goods attached did not belong to the debtor, Fuller v. Holden, 4 Mass. R. 501; Tyler v. Ulmer, 12 Mass. R. 169 ; Learned v. Bryant, 13 Mass. R. 224.
   Morton J.

drew up the opinion of the Court. Do the facts agreed on furnish a valid defence to this action ; and if not, may they be given in evidence in mitigation of damages ?

The ground of the defence is, that the chattels named in the officer’s return were not the property of the debtor at the time of the supposed attachment. Two questions necessarily arise upon the statement of the parties. Do the facts show a valid transfer of the property before the service of the plaintiffs’ original writ ; and if so, is it competent for the defendant to give this matter in evidence to defeat this action ?

The consideration of the assignment is not impeached, and there is nothing in the facts disclosed which shows any unfairness in the transaction. It must therefore be taken to be bond fide.

The possession of the property remaining in or being restored to the debtor, he could make delivery in fact to any purchaser. And had the assignee been a stranger, it cannot be doubted that the transfer would have been valid. Was there any thing in the relation which he bore to the parties or the property, which would prevent him from becoming the purchaser ?

The general property remained in the debtor. The special property was in the officer who made the attachment, unless he had lost the lien by giving up the possession to the general owner. The receipter was the mere servant of the officer, having no interest in the property nor any right to maintain any action for a violation of his possession, that being in lact the possession of the attaching officer. Commonwealth v. Morse, 14 Mass. R. 217. This possession having been given up by the officer or his servant to the general owner, the latter might lawfully sell the property, whether it remained bound by the attachment or not. If holden, the general property would pass, subject to the lien of the officer, but absolute as to all others. If not holden, then it would pass freely and absolutely as to all the world.

We can see no sufficient reason, founded either in authority, principle or policy, why the receipter, or even the officer himself, might not become the purchaser. The officer undoubtedly relied upon the personal obligation of the receipter, rather than upon a specific lien upon the property itself. He must have been aware that the receipter might, and probably knew that he did in fact leave the property in the hands of the original debtor. And while there, it was not only liable to be sold, but might be attached by another officer.

In this state df the case it may well be doubted, whethei the officer could again attach the property without an actual seizure of it. And having returned an attachment of it, he must be presumed to have reseized it. He cannot now deny that he made a valid attachment. But if the debtor had no property in the articles returned on the writ, the plaintiffs most certainly lost nothing by the attachment of them. It gave the officer an opportunity to inquire into the ownership of them, but imposed upon him no obligation to levy upon them.

If the property was not holden by the plaintiffs’ attachment, they clearly had no claim upon the funds collected by the officer from the receipter. The first attachments having been dissolved by the discontinuance of the suits in which they were made, the payment of the amount of the receipt was voluntary on the part of the receipter. It was made with the consent of the original debtor, and probably by the agreement of all parties legally interested. The money was holden by the officer in trust, to be appropriated agreeably to the wishes of the debtor and according to the arrangement of the parties in interest. Whether it was faithfully accounted for and properly applied, is a question which the proper persons may inquire into, but which the present plaintiffs have no right to investigate.

The property attached having passed from the debtor and vested in the assignee, can the defendant now be allowed to show that fact in defence of the action ? The general rule, that an officer cannot be permitted to falsify his own return, is too well established to be called in question. The deputy sheriff returned that he attached certain real estate and certain chattels, describing each. He cannot be suffered to deny that he attached these specific parcels of property. But it is no part of his return in form or effect, that the title of the .real estate or the ownership of the chattels was in the debtor. And indeed the officer nowhere says or intimates that the- debtor owned or possessed either. It is therefore clearly competent for the defendant to prove that the property attached was in a third person, and not in the debtor. Fuller v. Holden, 4 Mass. R. 501 ; Tyler v. Ulmer, 12 Mass. R. 169 ; Learned v. Bryant, 13 Mass. R. 224.

And we cannot perceive that it is material whether the officer makes the attachment by the direction of the plaintiff or of his own motion, or whether he did or did not know that the debtor had no interest in. the property attached. His return that he had attached certain property could not prejudice the creditor ; for he might levy upon it or not, as he should think expedient when he obtained his execution. If the officer acted without his direction, he would not be answerable for any trespass committed in making the attachment.

The judgment in the case of Gardner v. Hosmer, cited by the plaintiffs’ counsel, is perfectly consistent with the principles here laid down. In that case the officer was specially directed “to attach property to the amount commanded or to hold to bail.” The return was, that he “attached property to respond the demand ” sued for. The officer assumed the responsibility, that the property attached was the debtor’s ; otherwise he would have been bound to hold to bail. The evidence offered by him was in direct contradiction of his return ; which is clearly inadmissible. And if he had been allowed to show that the debtor had no property liable to attachment, he would have been answerable for not having taken his body. But having elected to attach rather than to arrest, and having returned that he attached sufficient, he could not by any principle be allowed to show that he neither attached sufficient property nor arrested the body.

Upon the facts stated we are all of opinion, that.the property in the chattels attached was not in the original debtor at the time of the attachment; and that it is competent for the defendant to show this in defence of the action. 
      
       See Fettyplace v. Dutch, 13 Pick. 388; Arnold v. Brown, 24 Pick. 89; Whipple v. Thayer, 16 Pick. 25. If an officer deliver goods attached to a receipter, who gives them up to the debtor, the officer’s lien is lost; and the goods may be sold by the debtor, or attached by another creditor. Robinson v. Mansfield, 13 Pick. 139.
     
      
       See Arnold v. Brown, 24 Pick. 89.
     
      
      
        Barney v. Weeks, 4 Vermont R. 146.
     
      
      
        Canada v. Southwick, 16 Pick. 556.
     
      
       A receipter may, in an action brought by the officer on the receipt, prove that the goods attached were not the property of the debtor. Fisher v. Bartlett, 8 Greenl. 122; or that another officer who had previously attached the goods, and to whom the receipter had delivered them, had a better title than the plaintiff. Webster v. Harper, 7 N. H. R. 594. But he cannot be permitted to prove, that the goods were not actually attached by the plaintiff. Lowry v. Cady, 4 Vermont R. 504; Spencer v. Williams, 2 Vermont R. 209; Allen v Butler, 9 Vermont R. 122; Morrison Blodgett, 8 N. H. R. 255.
     