
    John Cleverly versus James Brackett and Lemuel Brackett.
    Where a creditor has received from his debtor a -personal chattel in pledge, as collateral security for the debt, he cannot cause other property of the debtor tc be attached in an action for the debt, without first returning the pledge.
    
      Trespass for breaking and entering the plaintiff’s close, and taking and carrying away one gelding and two heifers, the property of the plaintiff.
    
      Lemuel Brackett, one of the defendants,
    pleaded not guilty, and stated, pursuant to the statute of 1792, c. 41, as constable of the town of Quincy, an attachment of the heifers by the direction of the other defendant, James Brackett, upon a writ tested April 6th, 1810, in his suit against the said Cleverly, and a summons left at his usual abode, &c.
    
      James Brackett, the other defendant,
    pleaded the general issue; and for a second plea justified the taking of the gelding and heifers by virtue of a writ of attachment at his suit against the now plaintiff, upon which he delivered, and the said James accepted, the said gelding as a security in part; and that afterwards, by virtue of the same writ, the said gelding being insufficient, &c., the said James and Lemuel entered the close where, &c., and finding the said gelding and heifers, and having caused the heifers to be attached * by the said Lemuel, constable, &c., the said James and Lemuel removed the said gelding and heifers, as they lawfully might, &c.
    To this plea the plaintiff replies de injuria suá proprio; and traverses the delivery of the gelding; and avers, as to the taking of the heifers, that before the taking, &c., the said Lemuel had served and executed the said writ of attachment.
    Issues being tendered on the delivery of the gelding, and on the prior service of the writ, these and the general issues tendered were joined by the defendants and the plaintiff respectively, and tried before Sewall, J., at the last March term in this county.
    At the trial the plaintiff proved, that Lemuel Brackett and another person, thought by the witness to be James Brackett, were seen driving two heifers, and leading a gelding, between 9 and 10 o’clock in the evening of the 9th of April, 1810; the witness knowing the heifers to be the plaintiff’s, and believing the gelding to be bis also. It was also proved that, previously, in the forenoon of the same day, a summons in the suit of James Brackett, against the said Cleverly, had been left at his house by Lemuel Brackett, declaring an attachment, &c., in common form. It appeared also, from the testimony adduced at the trial, that the gelding was worth 50 dollars, and that the heifers were worth 15 dollars each.
    The judge expressed his opinion to be, that in attaching personal property to secure a debt, the creditor and officer, if sufficient had not been taken before the delivery of the summons, were justifiable in proceeding afterwards, before a return of the writ, to make a further attachment:  but if sufficient had been previously taken, then a further attachment, after delivery of the summons, or any proceeding oppressive in fact to the supposed debtor in the writ of attachment, were not to be justified. No attachment of the gelding being returned, and the delivery and acceptance of the * gelding as a security upon the agreement of the parties in the former suit being vacated by the determination of the creditor to make an attachment upon his writ, the judge directed a verdict for the plaintiff, subject to the opinion of the Court upon the foregoing facts reported by him; the defendants moving for a new trial.
    T. B. Adams, of counsel for the defendant Lemuel Brackett,
    
    considered the case of the two defendants as standing on very distinct grounds. His client, he insisted, had done no more than his official duty compelled him to do. He attached the chattels of Cleverly, as his precept commanded him, and he made due return of the writ and of his service of it. If James Brackett should appear to have made himself liable to the plaintiff’s action, by any irregularity in his conduct, it would seem to savor greatly of hardship to apply the same considerations to Lemuel, who had conducted himself with propriety, in every view, except that he had happened to be seen in company with one who had committed a trespass.
    
      S. D. Parker, who appeared for the other defendant, James Brackett,
    
    argued that his whole statement, taken together, was a sufficient justification. He received the gelding as collateral security for his debt; and, it being insufficient, he caused the heifers to be attached, as he had a good right to do. Nor did the attachment vacate the partial security he had previously obtained.
    
      Whiting, for the plaintiff,
    insisted that the directions of the judge at the trial were correct, and, the jury being the proper judges of the evidence, there was no cause to set the verdict aside, and send the parties to another trial.
    
      
      
         [Such a proceeding would seem to be quite irregular.—Ed.]
    
   Curia.

The brief statement filed by the constable in this case is defective, inasmuch as it does not show the disposition which he made of the cáttle which he attached. His posterior conduct may have been such as to make him a trespasser ah initia. As we shall send the action to another trial, he will have opportunity to amend it.

* As to the defence set up by the other defendant, we are of opinion, that after he had received the gelding as a pledge for his demand against the plaintiff, he could not lawfully attach other property for the security, without first returning the pledge ; for he could not know how far the pledge was competent to his full security. By thus unlawfully attaching the heifers, therefore, he committed a trespass. And if the constable knew of the gelding’s having been pledged as it was, he also was a trespasser in attaching the heifers.

It is not easy to suppose such a state of the case, as would entitle the plaintiff to damages for both the gelding and heifers. Yet the jury have here found the defendants guilty of the whole trespass charged.

As the case is much involved, and the whole testimony furnished at the trial was very slender, we order the verdict to be set aside, and a new trial to be had; but, as the subject of the dispute is of inconsiderable value, we hope the parties will adjust the business out of court, and that we shall hear nothing more of it.

New trial ordered. 
      
      
         [There seems to be no reason why he might not lawfully have * attached in this case, as well as in the case of a mortgage of real estate. — Ed.]
     