
    Edmund Bridge versus Hezekiah Wyman and Another.
    On the attachment of personal property on mesne process, it is necessary that such possession thereof be retained by the officer as shall make the attachment notorious; or the attachment will be vacated, as respects future attaching creditors, or purchasers without notice.
    This was an action of debt upon a bond given to the plaintiff, when sheriff of the county of Lincoln, conditioned to indemnify him against the misfeasances and nonfeasances of the defendant Wyman, whom the plaintiff had constituted his deputy in the said office of sheriff.
    After oyer had of the bond and the condition, the defendants plead in bar that the said Wyman omnia performavit, &c.
    The plaintiff replies, that, on the 19th of April, 1808, Jonathan Phillips and others sued out a writ of attachment against one Enoch Jones, returnable on the second Monday of May then next, command ing the said sheriff, or his- deputy, to attach the property of the said Jones to the value of 2000 dollars ; which writ was on
    the same * day delivered to John O. Webster, another of the plaintiff’s deputies, who, on the 20th of said April, attached a new ship, of the value of 5000 dollars, as the property of Jones, and made due return of the writ. The said Phillips and others having, in January, 1809, recovered judgment in their said suit for 1733 dollars, sued out their execution thereon. On the ' ibth of October, 1808, one Abraham Barker sued out his writ of attachment against the said Enoch Jones and one Josiah Noyes, returnable on the second Monday of January then next, commanding the said sheriff, or his deputy, to attach the property of the said Jones and Noyes, to the value of 500 dollars; which writ was on the same day delivered to the defendant Wyman, .who attached the same ship as the property of the said Jones and Noyes, qnd made due return of the writ. The said Barker, in August, 1809, recovered judgment in his said suit for 444 dollars. The said Phillips and others, on the 23d of January, 1809, and within thirty days from the rendition of their said judgment, delivered their said execution against Jones to the defendant Wyman, then a deputy sheriff, as aforesaid, directing him to levy the same on the said ship, or any other personal property of the said Jones, if he could find any, and to sell it according to the command in the execution ; or to demand the said ship of the person who had receipted for her to the said Webster; or, in case Webster should apply to Wyman for the execution, to deliver the same over to him. And the said Wyman received the said execution, and well knew the attachment, which had been made by Webster, of the said ship, and in whose custody Webster had placed it for safe keeping; and ought to have taken the same in execution, or to have demanded it of the person who had it in custody, or to have permitted Webster, on his application, to have taken the execution, that he might have taken the ship in execution, or have demanded it of the person having it in custody, so as to charge him with the value thereof in case of non-delivery thereof on demand But the said Wyman, regardless of his duty, did not levy the execution on the said * ship, nor demand it of the person in whose custody it was; and although Webster requested of him the execution, for the purpose of levying it upon the ship, and of demanding it of the person having the custody of it, he refused to permit Webster to have the execution, whereby he was deprived of an opportunity of levying it upon the ship, or obtaining the same of the person to whose custody he had committed it; and Wyman afterwards returned the said execution unsatisfied; by reason whereof the plaintiff became dable, and has been compelled to pay to the said Phillips and others the whole amount of their judgment, and to expend large sums of money in the defence of their action against him for the recovery thereof, amounting to 3000 dollars. And this, &c., wherefore, &c.
    The defendants,
    in their rejoinder, allege that Webster, immediately after he had attached the said ship, as stated in the replication, voluntarily permitted the same to be taken out of his custody and safe keeping, and to be returned to and remain in the hands and possession of the said Jones and Noyes, who were joint owners thereof, until the said 18th of October, when Wyman attached it at the suit of said Barker, as the property of the said Jones and Noyes; and also, on the 19th of the same October, further attached the same by virtue of another writ of attachment in his hands, sued by one George Clark against the 'said Jones and Noyes, returnable on the second Tuesday of September then next, whereby the sheriff, or his deputy, were commanded to attach their property to the value of 4000 dollars; which last writ was duly returned; and in that suit, in May, 1812, judgment was rendered in favor of said Clark against the said Noyes, surviving partner of the said Jones, who had deceased pending said suit, for the sum of 1069 dollars; which said ship was all the goods and estate of the said Jones and Noyes ol any kind which came to the knowledge of the said Wyman, or could by him be found within the precinct of the sheriff, while the execution aforesaid remained in his hands. And this, &c., wherefore, &c.
    * The plaintiff,
    in his surrejoinder, alleges that Webster, after making the attachment set forth in his replication, did place and deposit the same ship in the care and custody of Nathaniel Coffin, Esq., for safe keeping; and the said Coffin thereupon, by his memorandum in writing, promised the said Webster, deputy sheriff as aforesaid, that he would safely keep the same, and deliver it to Webster on demand; and the said Coffin did accordingly keep said ship for Webster, until Wyman attached it, as alleged in the plaintiff’s replication ; and traverses the allegation of the defendants, that Webster voluntarily permitted the ship to be taken out of his custody, and to be returned to the said Jones and Noyes, &c., and concludes with a verification.
    The defendants,
    in their rebutter, aver that Webster voluntarily permitted the ship to be taken out of his custody, and to be re turned to Jones and Noyes, &c., and tender an issue to the country which is joined by the plaintiff.
    In the trial of this issue before Thatcher, J., September term, 1915, the defendants, to maintain the issue on their part, proved that, from the time that Webster attached the ship, the said Jones and 
      Noyes continued to work on the ship at their wharf as before the attachment, to complete her lading, and to fit her for sea, until Wyman attached her ; and after that attachment they still continued the same operations, and chartered her to certain merchants, and ,‘n the latter part of November in the same year, the ship sailed from said wharf, and had never returned.
    The plaintiff,
    to maintain the issue on his part, proved that, when Webster made the attachment, the ship was partly laden and not rigged, — that, on the same day, he delivered her to N. Coffin, Esq., for safe keeping, and took from him the following writing, viz. : “ Lincoln, ss. Bath, April 20, 1808. Received of Mr. John O. Webstei, a deputy sheriff for said county, the new ship, tackle, and apparel, belonging to Jones and Noyes, as she now lies at their wharf, for safe keeping, she * being attached by said Webster as their property, on a suit against them in favor of Jonathan Phillips and others, returnable at the next May term of the Court of Common Pleas in this county, for the sum of 2000 dollars; and I promise to return her to him again on demand, or pay the amount of the execution recovered on said demand. Nathaniel Coffin.”
    
    The said Coffin transacted his business on the same wharf: his office was in sight of and near said ship, and he in daily observation of her. The ship remained in the same place from the time of Webster’s attachment until those made by Wyman. All that was done upon her by Jones and Noyes, after Webster’s attachment, was beneficial to the ship, and rendered her of greater value than when attached.
    There was no pr.oof that Wyman had any knowledge of the attachment made By Webster, until after he, Wyman, had attached her; nor that Webster requested Wyman to deliver him the said execution, until after the expiration of thirty days from the rendition of Phillips’s judgment against Jones. And it appeared that the two debts, to secure which Wyman attached the ship, were caused by him to be satisfied on execution.
    Upon this evidence, the plaintiff insisted that the attachment so made by Webster was valid and effectual; that the delivery of the ship to Coffin, as aforesaid, and her situation afterwards, until Wyman attached her, was not voluntarily returning her to Jones and Noyes; and that he had maintained the issue on his part.
    But the judge instructed the jury that Webster’s attachment, by the subsequent disposition of the ship, and the acts of said Jones and Noyes, as proved as aforesaid, was abandoned and discharged, and that the issue, on the part of the defendants, was well main tained. Whereupon the jury returned a verdict for the defendants ; and the plaintiff filed his exceptions to the said direction.
    The cause was shortly argued at the last June term * in this county by Williams for the plaintiff, and by Mellen and Orr for the defendants ; and at this term the opinion of the Court was delivered by
   Parker, C. J.

We are of opinion that the direction of the judge at the trial was correct, and that the verdict is well maintained by the evidence stated in the report. The attachment made by Webster was sufficient to make him responsible for the property to the attaching creditor ; but actual custody or possession was necessary to make it valid against a subsequent attachment.

The delivery over to Coffin appears to have been merely nominal. The debtors were permitted to work upon the ship, and to have the visible possession of her at the time Wyman made his attachment; and Coffin, who was the servant of Webster, gave no notice to Wyman, or to any other person, that he had the custody of the ship.

If it be not necessary, in order to perfect the attachment of a ship, that the attaching officer should place a person on board, to keep possession, and notify others that the vessel is in the custody of the law, it is at least essential that the debtors should not have the management of such property, in the same manner as they would have if no attachment were made, and that some persons should be authorized and required by the attaching officer to give notice, in case a second attachment is attempted.

The effect of these nominal attachments, viz., leaving the property in the hands of the debtor, and taking a receipt of some friend of his, has been frequently adverted to. They are so far valid as to bind the officer for the value of the property, and to give force to the contract between him and the person who gives his receipt for it. But with respect to strangers, other creditors, or purchasers without notice, the attachment is wholly inoperative. Such transactions are always confidential; the sheriff takes his security from the friend of the debtor; and this friend is secured by, or he relies upon, the debtor. They all act at their peril, * and have it not in their power to effect the security of the attaching creditor, or by such means to withhold the property from other creditors.

Wyman had full right to attach this ship; and although he also permitted her to go to sea, yet the plaintiff has not been injured thereby; for the judgments in those suits have been satisfied. Nor do we perceive that Wyman has brokén the condition of his bond in consequence of having had the execution of Phillips & Al. committed to him, and returning it unsatisfied. The ship was gone when he received the execution ; and it does not appear that he knew of the attachment made by Webster until more than thirty days after the judgment had expired ; nor did he know, until then, that Coffin had become responsible to Webster,

Judgment on the verdict. 
      
      .) [Sanderson vs. Edwards, 16 Pick. 144. — Hemenway vs. Wheeler, 14 Pick. 408 —- Naylor vs. Dennie, 8 Pick. 198. — Ilsley vs. Nichols, 12 Pick. 270. — Sawyer vs. Merrill, 6 Pick. 478. — Baldwin vs. Jackson, 12 Mass. Rep. 131.— Train vs. Wellington, 12 Mass. Rep. 495. — Merrill vs. Sawyer, 8 Pick. 397.-— Carrington vs. Smith, 8 419. — Ed.]
     