
    Jacob Morse vs. John S. C. Knowlton.
    If, upon the sale of attached property on a writ, the money received was put into the hands of the creditor, who, after obtaining judgment and taking out execution, refused to pay over the same to the deputy sheriff who had the execution, so that it could be applied thereon, and the execution was returned in no part satisfied, the lien obtained by the attachment is dissolved at the expiration of thirty days; and another creditor who subsequently attached the same property, subject to the former attachment, and has obtained judgment and execution in his suit, becomes entitled thereto, and may maintain an action against the sheriff, if, upon committing the execution to him for service, the property is not found, or the avails of it applied thereon.
    Tort against the sheriff of Worcester county to recover damages for the default of his deputy.
    At the trial in the superior court, before Allen, C. J., it appeared that tt e plaintiff, having a demand against Griffin Lewis, sued out a writ against him, upon which Daniel T. Thayer, a deputy of the defendant, attached certain personal property of said Lewis, subject to a prior attachment of the same on a writ in favor of Spaulding Harvey. This property was afterwards sold on Harvey’s writ to Harvey for the sum of $246. The plaintiff duly entered his action, and recovered judgment therein at November term 1860, and took out execution dated November 26, 1860, which, the deputy Thayer having left the Commonwealth, was put into the hands of the defendant for service within thirty days after the recovery of the judgment, with orders to levy it on the property attached. The defendant committed the execution to his deputy, Benson, who called upon Harvey and de'manded the property, and, not receiving the same, and being unable to find other property of Lewis, returned the execution in no part satisfied.
    The defendant offered to prove that Harvey recovered judgment in his action against Lewis at September term 1860, and took out execution dated September 24, 1860, which was put into the hands of the defendant for service within thirty days after the recovery of the judgment, with orders to levy it on the property attached; and that he committed the same to said Benson, who made demand within said thirty days of Harvey for the property so attached, or for the proceeds thereof, which still remained in Harvey’s hands, and, the proceeds not being paid over to him, he made return on the execution that he called on Harvey, the judgment creditor, for directions as to the service of the execution, whereupon Harvey acknowledged that he had in his possession $246, being the proceeds of the sale of the property attached on the writ, but refused to pay over the same or receipt therefor on the execution, and, having made diligent search for other property of Lewis, and finding none, he returned the execution in no part satisfied. The judge, however, ruled that these facts would constitute no defence, and a" verdict was returned for the plaintiff, and the defendant alleged exceptions.
    P. C. Bacon, for the defendant.
    
      G. F. Hoar, (S. A. Burgess with him,) for the plaintiff.
   Chapman, J.

The property attached on Spaulding Harvey’s writ having been sold, the money obtained for it should have been kept in the hands of the defendant’s deputy, to be applied on the execution. An actual application of the money was all that remained to be done. Eastman v. Eveleth, 4 Met. 147. But it appears that the money had been left in the hands of Harvey, and he refused to do any act to enable the deputy who had the execution to make the application. The money not being applied, the officer returned the execution unsatisfied. The attachment was thus dissolved, and the plaintiff then became entitled to the money to be applied on his debt.

Exceptions overruled.  