
    John O. Webster versus Nathaniel Coffin.
    Where one had received a ship from an officer, who had attached her on mesne process, and had promised to deliver her to the officer on demand, and he afterwards permitted the owner to continue possession, and to carry her to sea, he was hoi den liable to the officer upon his promise, although no demand was made on him within thirty days after judgment was rendered in the suit on which she had been attached; the officer having been held to answer to the attaching creditor.
    This action was assumpsit upon the receipt and undertaking of the defendant, which is recited in the report of the preceding case of Bridge vs. Wyman 8f AL, and was referred to the determination of the Court, upon certain facts agreed and stated by the parties.
    The facts stated are substantially contained in the preceding case, viz., the attachment of the ship by the now plaintiff, then a deputy sheriff; his delivery of it to the defendant upon his said receipt, and undertaking to redeliver it on demand; the recovery of judgment and execution by Phillips and others against Noyes; the continuance of the ship in the hands of the former owners until her sailing, in November, 1808, when the said Noyes sailed in her; the situation of Mr. Coffin’s place of business; the delivery of Phillips’s execution to * Wyman; his return of the same in no part satisfied ; and a demand of the ship by Webster of Coffin, September 22, 1812. It is also agreed that the present defendant has paid no part of the judgment recovered by Phillips against Jones; that Phillips has recovered against the sheriff Bridge the sum of 2396 dollars, for the default of himself and his deputies in the discharge of their duty relative to the said action against Jones, and that Bridge has paid the same with additional expenses ; that Bridge has brought his actions against Webster and Wyman and their respective sureties for indemnity; that Wyman attached the said ship at the several suits of Barker and Clark, as stated in the defendants’ rejoinder in the said case of Bridge vs. Wyman Al.; that he delivered her to one Webb, taking his engagement in writing to deliver the same on demand ; that the actions of Barker and Clark were continued in court until long after January, 1809, when Phillips &• Al. recovered their judgment against Noyes; that no other demand was ever made upon Coffin for the ship but that before stated; and that Webster had no property therein except by virtue of his attaching her at Phillips’s suit, and that he never had any other writ against said Jones and Noyes than that sued by Phillips, as aforesaid.
    The cause was argued at the last June term by Williams for the plaintiff, and Orr for the defendant.
    
      Orr
    
    contended that this was a void undertaking for want of a consideration. It was said by the Court, in the case of Phillips & Al. vs. Bridge, 
       which arose out of this same transaction, that the object of such an interference is to send the vessel to sea, or, in other words, that the debtor may still have the full use of his property, notwithstanding the right of his creditors to hold it for theii security.
    The defendant’s engagement cannot be construed beyond a promise to indemnify the plaintiff against the rights of the attaching creditor. But those rights wholly ceased after thirty days from the judgment, the * execution not having been before delivered to the plaintiff.  It is not unlike the liability of an endorser of a bill of exchange, or promissory note, which ceases to exist after a neglect of due diligence and notice by the holder. The sheriff neglecting to make his demand on the defendant, all his claim was gone. The authority or rights of the bailee to hold the property attached could not be greater than those of the sheriff who had made the bailment under the circumstances of the case.
    
      Williams, for the plaintiff,
    contended that he was legally entitled to recover the value of the ship, which the defendant had explicitly engaged to keep until demanded by the plaintiff; or, at the least, the sum which the defendant’s breach of his undertaking had been the occasion of the plaintiff’s losing. The injury the plaintiff has sus tained, in being compelled to pay that sum, furnishes a sufficient consideration for the defendant’s promise. It was perfectly immaterial to the defendant whether the execution was delivered to the plaintiff, or to any other officer able to serve it within the thirty days.
    
      In the case of Phillips &f Al. vs. Bridge, the Court say that the injury to the plaintiffs there, and of consequence to the present plaintiff, accrued when the ship was restored to the debtors, which was long before judgment was rendered in the suit upon which the attachment was made. The ship being, at the time of the judgment rendered, out of the defendant’s control, a demand at that time would have been nugatory. In short, the defendant, acting as the servant of the plaintiff, must be answerable over to him, so far as by his misconduct the plaintiff has been made to suffer. 
    
    The action was continued for advisement, and at this term the opinion of the Court was delivered by
    
      
       11 Mass. Rep. 242.
    
    
      
       9 Mass. Rep. 258, Knap vs. Sprague.
      
    
    
      
       11 Mass. Rep. 219, Jewett vs. Torrey. — Ibid 211, Whittier vs. Smith & Al.
      
    
   Parker, C. J.

The only question which this case presents is, whether Mr. Coffin is exonerated from his express promise in writing to deliver the ship, which was the subject of the contract

to Webster, the plaintiff; * no demand having been made on him therefor, until more than thirty days had expired after the judgment, to secure which the attachment was made. °

It may be observed that, a demand having been made before the present suit was commenced, the defendant is liable, according to the terms of his contract, and can only be exonerated by showing that the plaintiff himself is not liable to the attaching creditors, and so has lost his right to enforce the contract with Coffin. But the facts agreed show clearly that the plaintiff is liable to the judgment creditors. Indeed, the investigation made by the Court in the case formerly decided between the judgment creditors and Bridge, the sheriff, as well as in the case of the sheriff against Wyman and his sureties, in which judgment has now been rendered, leave no doubt of the liability of Webster to the sheriff. It is enough to make him liable, that the ship was once attached by him, and that she was not in his possession, or within the commonwealth, when the execution was about to be levied; the execution having been sued out, and a demand having been made upon Webster by Wyman, who had possession of the execution, within thirty days.

To what purpose would it have been for Webster to have made a demand upon the defendant, when the ship was actually at sea before judgment was rendered, and this by permission of Coffin, who had the opportunity of seeing the owners of the ship preparing her for sea, and must be presumed to have consented that one of them should depart with her? Had he kept the control of her until the lien of the creditor had ceased, and then had surrendered her, he would have been acquitted, as would Webster also. But Webster made himself responsible to the creditors absolutely while the legal lien continued, and Coffin’s responsibility to him was of equal duration. Having parted with the vessel, or perhaps never having had actual possession of her, a demand of Webster upon him would have been nugatory.

The case of Knap vs. Sprague, which was cited by * the defendant’s counsel, in which the receipter of property attached was held not responsible to a constable, is altogether different in its merits from this. There the constable was not liable on account of the first attachment, because execution was not sued out within thirty days from the judgment, and the second attachment was void; so that he had no legal or equitable claim to the property.

If Mr. Coffin is not indemnified, we may lament his imprudence; but the law must have its course.

Defendant defaulted.  