
    Daniel Denny versus Gilbert W. Warren.
    A deputy sheriff, having a writ of attachment, goes to the store of the debtor, whose clerk, in the absence of the debtor, locks the store, and delivers the key to the officer. This was holden to be a sufficient attachment of the goods in the store; and to be valid against another officer, who, afterwards, by the connivance of the debtor, attached and removed the goods.
    This was an action of trover, to recover the value of certain goods mentioned in the declaration; and was tried upon the general issue, at the last April term in this county, before Wilde, J.
    On the part of the plaintiff, a deputy sheriff of this county, it was n evidence, that on Saturday the 28th of November, 1818, there was delivered to him a writ of attachment in favor of one Samuel Kettle against one Aaron Morse, with directions to secure the denand declared on in the writ: that he went to the store of Morse, .vho was a trader in Worcester, about two o’clock in the afternoon of said day; that he continued there until sunset, Morse being absent, and a number of people being collected. The business of the store was conducted by one Whiting, clerk to Morse. In the course of the afternoon the plaintiff informed a person, who was a witness at the trial, that he had a writ against Morse, and had attached, or was about attaching, all the goods in the store. The witness observed to him that it would be a pity to remove the goods, and that, as he was going to the place whither Morse was gone, he should probably meet him, and would inform him of the plaintiff’s business; adding that Morse might procure a receipter for the goods. The plaintiff remained at the store until after sunset, the said Whiting continuing to sell goods, as they were called for, through the afternoon; the plaintiff observing to him about sunset, that if he sold much more, there would not be enough left for him. Whiting locked the store before it was dark, * and delivered the key to the plaintiff, who [ *421 ] immediately left the place; Morse returning about fifteen minutes after.
    The defendant was also a deputy sheriff, and claimed the goods in virtue of an attachment of them upon a writ in favor of one Barber against the said Morse. On the defendant’s part, it was proved that, early in the morning of Monday, the 30th of November, he went to Morse’s house, and made known his business, an agent of Barber being with him, and that Morse showed the defendant the goods in question, who attached and removed them, a part of them having been removed into another building than the store. The defendant knew nothing of the plaintiff’s doings, but Barber’s agent was knowing thereto.
    The defendant objected that the attachment made by the plaintiff was not valid, because he did not remove the goods from the store; and that he had sufficient opportunity to have done it on the 28th, if he had not waited for Morse’s return, as before stated.
    The jury were however instructed, that the attachment made by the plaintiff must be considered valid in law, if they believed his return thereof upon the writ to be true; and that the delivery of the key of the store, under the circumstances of the case, was equivalent to a removal of the goods, and vested a special property in them in the plaintiff. The defendant objected to this instruction, and if the objection was well founded, in the opinion of the Court, the verdict for the plaintiff was to be set aside, and a new trial granted, or the plaintiff become nonsuit, as the Court should direct. Otherwise judgment was to be entered upon the verdict.
    
      Mills, for the defendant.
    
      Lincoln, for the plaintiff.
   Parker, C. J.

The plaintiff, having been in the store, within view of the goods, and with the power to remove them, must be considered as having attached them; he having a writ for that purpose, and declaring his intention, but suspending the [ * 422 ] removal of them for the convenience *of the debtor. In this situation, the delivery of the key to him by the clerk, was the same as if it had been delivered by the debtor himself; for, in his absence, the acts of the clerk for the benefit of the master, ought to be construed the acts of the latter.

When the defendant took possession of the goods, they were already in the custody of the law; and although no keeper was placed over them, yet the possession of the first attaching officer could not be lawfully disturbed by any one knowing that an attach ment had taken place.

If negligence, or a voluntary abandonment of the attachment, had appeared, the case would be different. But the goods were locked up on Saturday night, and, for aught appearing, the plaintiff would have taken them.into his actual possession early on Monday morning; but was prevented by the act of the defendant. This act, although, perhaps, justifiable without knowledge of what had been before done, could not be so with the knowledge, which the agent of the plaintiff in the second action had cf the past pro-lead in gs.

The case shows collusion between the debtor and the second attaching creditor, to defeat the first attachment; and, although fraud has not been directly found by the jury, they have found facts which render the inference of fraud necessary. The defendant could not have entered the store without the assistance of the debtor; and some of the goods had been removed from the store, he knowing of the attachment. Upon the whole case, we think the verdict is well maintained by the evidence .

Judgment on the verdict 
      
       [Vide Bagley vs. White, 4 Pick. 395. —Ed.]
     