
    *John Watson & Al. versus William Todd & Al., and Thomas G. Thornton, Trustee.
    Goods attached hy an officer on mesne process cannot be attached at the suit of a second creditor, but by a writ executed by the same officer.
    Deputy sheriffs are all servants of the sheriff, and the possession of any deputy by virtue of an attachment is the possession of the sheriff.
    Tho sixth section of the statute of 1804, c. 83., relates only to different attach ments made by the same officer, at the suit of several creditors.
    The principal question submitted to the Court in this case was, whether Thornton, from his answers to the interrogatories put to him, was to be adjudged trustee of the principal defendants, Todd Worthley.
    
    It appears from the answers of Thornton, that he is the marshal of the United States for the district of Maine, and that, having seized sundry goods of the defendants to satisfy five executions, which he then held against them at the suit of the United States, he' regularly sold them at auction, and after satisfying the executions and his own fees, with the expenses incident to the sale, &c., there remained in his hands a balance of about 200 dollars. .
    The sale was on the 28th of February, 1807, and on the 24'th o that month, as he says it appears from an examination of the writ and return, Day &/• llsley sued out their writ against the present defendants, returnable to the next Court of Common Pleas in this county, and a deputy sheriff attached, on that writ, the goods which he, the marshal, afterwards sold. The service was made upon Thornton in the case at bar, on the 27th day of April, 1807.
    
      Day & Ilsley
    
    have since recovered judgment; and Thornton holds the above sum until the Court should determine whether he is the trustee of the defendants in virtue thereof, or not.
    
      Mellen
    
    contended that, upon these facts, the money in Thornton's hands should go in satisfaction of the execution which Day 8f llsley hold against the principal defendants, and for this he relied on the statute of 1804, c. 83. § 6., by which it is provided that when an officer shall have in his hands any money arising from the sale of personal property, more than sufficient to satisfy the [ *272 ] * execution on which it was sold, if such property shall before such sale have been attached on any other process, and the officer is duly notified thereof, he shall hold such surplus money, subject to such process, and apply the same to the payment of the execution on the judgment that may be rendered thereon.
    
      Whitman, for the plaintiffs
    contended that a marshal of the United 
      
      States was not such an officer as was intended by the statute; the legislature of this state having no authority to direct him in his official duty. But if the marshal was within the act, still Day &/• llsley have no claim on him for this money, for they have not conformed to the requisitions of the law, inasmuch as it does not appear that they took out their execution, or delivered it to an officer, within thirty days from the rendition of their judgment. And further, in selling to so large an amount beyond the executions in his possession he became a wrong-doer, and what money came to his hands was not in his keeping as an officer, and so not within the intent of the statute.
    
      Mellen.
    
    The marshal has sufficiently justified himself in his answers, and as an officer, he ought not to be presumed to have acted improperly. It is not pretended that a marshal of the United States is under the direction of the legislature of this state, or that his rights can be affected by our laws. The statute interferes with the rights of no officers, but merely directs what shall be the effect of attachments made under our laws. The marshal, when he had satisfied the executions in his hands, was functus officio. Whai money remained in his hands was the proceeds of property of the defendants, which had been attached at the suit of Day &f llsley and they are entitled to the benefit of it.
   The opinion of the Court was delivered by

Parsons, C. J.

A question is made on the part of the plaintiffs, whether Thornton is chargeable for the balance he states to remain in his hands, or for the unlawful conversion of some of the goods seized.

* This must depend on the fact, whether the marshal [ * 273 ] acted wantonly, and seized goods which he had no good cause to believe were necessary to satisfy the execution he held, or acted fairly, and from the benefit of a favorable sale, a balance of cash accidentally remained in his hands. In this case the officer swears that he acted honestly and fairly, taking no more goods than, according to the best estimation he could make of their value and of the charges of keeping and selling them, he judged sufficient to satisfy the executions.

He cannot on his answers be charged with the unlawful conversion of the defendant’s goods, but is chargeable as their trustee for the balance, unless from his subsequent answers he is chargeable for this balance to Day &f llsley. He does not state the day when he seized, but he sold on the 28th of February. Presuming his conduct regular, he must have seized as early as the 24th of that month, which he states to be the time when Day &f llsley sued out their writ against the defendants, and on the same day the deputy sheriff, the returning officer, attached on their writ the goods, which he, the marshal, afterwards sold.

At common law, goods seized on a fieri facias cannot again be seized by the same sheriff on another fieri facias; because they must be sold on the first, and because the sheriff has already acquired in himself a special property by the seizure.

But in this state the law of attachments is different. Originally the defendant was attached by his goods to appeal, and when he appeared, the attachment was dissolved. Afterwards the attachment was continued to the judgment, when it was dissolved. And finally the property attached, if the plaintiff recovered, was to be holden by the sheriff thirty days, that the plaintiff might out of the property satisfy his execution. But if he did not deliver his [*274] execution to the officer in thirty days, the * attachment was finally dissolved. And on these principles the priority of attaching creditors is founded.

But as the defendant might be attached by his lands or goods when in fact there was no cause of action, the same officer, who had the goods in possession, might again attach them, or rather continue to hold them, to compel the defendant to appear and satisfy the judgments of other plaintiffs. Hence a second attaching creditor may have the benefit of goods, or a balance in cash, remaining after the satisfaction of the first execution.

As to lands, the practice is different. Originally, when a man was attached by his lands, the officer, to compel his appearance, ought to have taken the profits into his own hands. But in fact the defendant is never disturbed in the possession or pernancy of the profits, until the execution be levied. Different plaintiffs may therefore cause the same lands to be attached, and by different officers, as by a sheriff and by a coroner. And after enough has been taken by the first attaching creditor by appraisement, the second attaching creditor may take enough of the remainder by an appraisement, and so on to a third, until all the land be appraised.

As to goods, the officer must hold them in his actual custody, so that he alone can control the possession; they cannot therefore be attached at the suit of a second creditor, but by a writ executed by the officer who already has the possession. For another officer, in order to attach, must lawfully take the possession ; but he cannot lawfully take the goods from the officer who has first lawfully attached them, he having a special property by his prior attachment. When we speak of different officers, we do not mean different deputies of the same sheriff, for they are all servants of the sheriff, and the possession of any deputy by virtue of an attachment is the possession of the sheriff.

The present question is easily settled by the application. of these principles of our attachment law. It does * not [ * 275 J appear which officer, the marshal or sheriff, first took possession. If it were material, we should direct a further examination. If the marshal first seized, the sheriff could not afterwards lawfully attach, for he could not divest the marshal of his possession and special property. The return of the officer therefore is not true, being founded on a mistake of the law. If the sheriff first attached, then the marshal, in consequence of the priority given by law to the United States, might seize them in his possession, take them from him, and entirely defeat and render void the attachment; so that either way Day If llsley have no lien upon the goods, or upon the balance in cash, by virtue of the attachment made on their writ.

The law upon this subject had been doubted in some instances, which occasioned the provisions in the sixth section of the statute of 1804, c. 83. But that section must be confined to cases where different attachments of chattels had been made by the same officer, but at the suit of different creditors. For two different officers, as a sheriff and a coroner, cannot attach the same goods at the same time; as but one can have the actual and legal possession .

Thornton must therefore be considered as the trustee of the defendants for this balance; and the plaintiffs may have execution against the goods, effects and credits of the defendants in his hands. 
      
      
         Vinton vs Bradford, 13 Mass. 114. — Thomson vs. Marsh, 14 Mass. 269.
     