
    TWOMBLY & al. v. HUNEWELL, sheriff, &c.
    
    Where an officer is charged by the original debtor with haying- lost or wasted a portion of the goods which he had attached, it is competent for him to excuse himself from liability by shewing that he has applied the amount to the use of the plaintiff, by paying with it the expenses of keeping the goods.
    The expense of the safe custody of goods attached on mesne process, is a lien on the goods ; and it is not affected by the allowance of a sum for that purpose by the Court in the taxation of 'costs for the original plaintiff.
    This was an action of the case against the late Sheriff of this county, for the neglect of one of his deputies. The plaintiffs declared thjat the deputy, having a writ of attachment against them at the suit of one Gay, attached by virtue thereof a large quantity of goods, — that judgment was recovered in due course of law against them in favour of Gcty for the amount of his debt, and costs of suit, “ and thirty dollars allowed by “ the Court in full of all expenses in keeping, storing and re- “ moving said property attached, pending said suit, making “ whole costs forty-nine dollars and sixty-five cents,” — that he duly sued out his writ of execution on the judgment, — yet the defendant and his deputies did not safely keep the attached goods while the suit was pending, and for thirty days after' judgment, that they might be seised in execution',- but within that time wasted, consumed and destroyed them, &c.
    It appeared in evidence on the trial, that after the goods were attached, which were in the plaintiffs’ store on one of the islands in the bay, they were left by the officer in the custody of one Johnson, at the request of Twombly, under whose control they were immediately placed again by Johnson; — that Twombly continued to manage the business and sell the goods as before, taking the money to his own use; — that the officer sometime- after went to the store and caused an account to be taken of the goods attached and then on hand, and by agreement of all concerned, Johnson’s accountable receipt was given up, and a new arrangement made. One Hussey was then appointed by the officer to superintend the attached property, of which he took charge accordingly;> and with his permission Twombly sold‘a part of it, to the value of $17 5, for which amount Twombly gave Hussey his note. All the residue of the property was either appropriated to the use of Twombly, or duly sold and accounted for on the execution, which issued on Gay's judgment against the present plaintiffs.
    It further appeared that when Hussey was appointed to the charge of the goods, it was expressly agreed on the part of Twombly, that his services should be no expense to Gay or to the officer, and that Twombly should defray the whole of that charge. It also appeared that Hussey was retained in service longer than was anticipated, in consequence of Twombly's breach of his engagement to pay Gay's debt before judgment; — and that when the judgment was made up in favour of Gay, an allowance of thirty dollars was made in the taxation of costs, for the custody of the goods while under attachment, arid for Hussey's care.
    The plaintiffs contended at the trial for the right to recover the 175 dollars, which they said had never been applied to satisfy the judgment against them, which had been otherwise fully satisfied by Twombly. But the defendant resisted this demand, on the ground that the sum thus claimed had been wholly absorbed in the expense of the custody of the goods, and the wages of Hussey, for whose services Twombly engaged to pay.
    The Judge who presided at the trial instructed the jury— that if they believed the testimony, Twombly had made a special agreement to pay all the expense incurred by Hussey's employment and services in the custody of the attached property; — that if those expenses exceeded what was expected, in consequence of the wrong and breach of promise on Twombly's part, of which they would judge, he could not avail himself of the objection ; — that in the employment of Hussey, the officer and Gay were one; — that Hussey was in law the agent of the officer, to whom Twombly was indebted for the amount of his services; — that though the Court below, in the taxation of costs, had allowed the officer, as custody-fees, only thirty dollars, that could not affect his rights; — that the Court might justty consider the property attached as chargeable with that amount; and whether there was a special agreement on the part of Twombly to pay a larger sum, or not, was not a question to he finally settled by them. He further instructed them that the payment of 175 dollars to Hussey was to be considered as a payment by the officer, his principal; and that therefore, as his wages amounted to more than that sum, exclusive of the thirty dollars allowed by the Court, it was competent for the officer to appropriate the money, thus in his hands, to his own indemnity, wherewith to pay Hussey's wages ; — and that this was such an accounting for it, as to discharge him and the defendant from all liability in the present action ; it would prevent circuity of action, and do justice to all concerned ; — an object desirable in the present case, as Gay was admitted to have since died insolvent, and Twombly also to be destitute of any property.
    The jury thereupon returned a verdict for the defendant, which was taken subject to the opinion of the whole Court upon the correctness of the Judge’s instructions.
    
      Todd and Longfellow now argued against the verdict.
    They insisted 1st. that the expense of keeping the goods was not a charge to the officer, and of course he could not retain for it. It was his duty to have removed them to a place of safety, in which case the whole expense would not have exceeded ordinary truckage and storage. The contract between Twombly and Hussey was wholly personal and private, with which the officer had nothing to do ; and his payment to Hussey is entitled to no more favour than if, without request or assent, he had paid any other debt of the plaintiff. — But 2d. — if the sheriff had been liable to Hussey for his fees and expenses, yet this subject had been adjudicated by a Court of competent jurisdiction. The sheriff’s fees and expenses are always chargeable, in the first instance, to the plaintiff, who taxes them in his bill of cost against the defendant. This taxation is wholly within the control of the Court which renders the judgment, and by that Court it has been finally determined in the present case without. appeal or exception. Sewall v. Mattoon, 9 Mass. 535. Blake v. Shaw, 1 Mass. 506.
    
      Emery and Daveis, é contra,
    
    contended — 1st. that the expense" of keeping the goods was in the first instance a charge on the property itself, to be deducted by the sheriff from the proceeds of the sales. Tyler v. Ulmer, 12 Mass. 168. And thus it is ultimately paid by the debtor. Caldwell v. Eaton, 6 Mass. 402. If the expenses in this case were large, it was the fault of Twombly. A keeper was necessary, because of the peculiar situation of the goods. 2d. As to the adjudication of the question by the Common Pleas it was void ; — 1. because that Court was not competent to decide it, for the expenses were a lien on the goods, which the Court could neither destroy nor impair; and 2d. because the question was not properly before them, the officer not being a party, and never having been heard. It would be a violation of one of the plainest principles of natural justice, to conclude the rights of any citizen, without affording him an opportunity to maintain and defend them.
   Mellen C. J.

delivered the opinion of the Court.

The justice of this case is so evidently with the defendant upon the finding of the jury and the report of the Judge, that, unless some principle of law clearly forbids it, we feel disposed to confirm the verdict.

It is perfectly plain that an officer, who attaches personal property on mesne process, is bound to keep it safely in possession or under his control; and that he is answerable for the property, in case of loss by his omitting to take proper care of it. — This is the law where neither of the parties consents to any particular disposition of it.

If the plaintiff consents to any such particular arrangement or disposition, he cannot afterwards object to it or claim damages of the sheriff on account of it. — So if such disposition be made by the consent of the defendant and for his accommodation, he ought not to complain of the consequences of it.— In some instances an arrangement is made by consent of both parties and the.Sheriff; as incase ot attachment of personal property, where it is agreed by all concerned that the property shall be sold by the officer before judgment. — In such a case the officer is justified in carrying the agreement of the parties into effect. — In the case at bar the goods attached were, at the request, and for the accommodation of Twombly, left in his possession, under the accountable receipt of Johnson ; and were aftertvards, by a general arrangement among all concerned, placed in the care and custody of Hussey, who was appointed by the officer as his agent to take care of the property; Tzoombly agreeing that the services of Hussey, thus appointed, should be no expense tó Gay or the officer; but should be a charge upon himself.— The note for $175 was given by Tzoopfly to Hussey for a part of the goods which he had sold by Hussey’s permission ; and all the residue of the goods attached, or their proceeds, have been accounted for, and have gone to the úse and benefit of Tzoombly ; and the question is whether the above sum of $175 has not also been so applied! — A payment of that sum to Hussey was in law a payment to the officer, his principal. — As the officer appointed Hussey, he was bound to pay him ; and Tzoombly engaged to indemnify him by' furnishing the funds for the purpose. — The officer then, haying their funds to the amount of $175 in his hands, instead of paying them over to Tzoombly and then recovering them back again upon Tzoombly’s agreement to pay them, retains them for his own indemnity and the payment of Hussey’s wages. And why should he not be permitted so tó do ? It is true, that in an action of assumpsit the $175 note could not be offset against the plaintiff; — but in the present action, wherein the officer is charged with having lost and wasted the goods, we are well satisfied that it is competent' for the defendant to excuse himself from liability, by shewing that he has applied that amount to the use and benefit of Tzuombly, by paying Hussey’s wages with it, according to his express agreement, for services in guarding the property Where it was left for Twombly’s accommodation; — unless the taxation of the g30 by the Court .is to be considered as a final adjustment of all claim on Tzoombly, beyond that sum, on account of Hussey’s ■wages. — We do not consider this taxation as affecting the question. — The sum thus taxed, Gay Was authorised to recover — it ■was a direct Hen on the goods ; and the Court would have had just the same power tó allow that sum. in the taxation, had there not been any express agreement of Tzoombly to defray all the, expenses of custody, high as was their amount. — But it does not appear that the officer had any knowledge of this taxation,, or fever consented that that sum should be accepted by him as an Equivalent for the engagement of Tzoombly. We are very cleaÉ that such a proceeding cannot deprive the officer of his claim, or settle his rights upon the contract. — We are all of opinion that, upon the evidence before us, the motion for a new trial cannot prevail. — There must be

Judgment on the verdict.  