
    Eliphalet Hale versus James Dennie.
    Declaration alleging that the defendant, as deputy sheriff, attached goods of A, on a writ of attachment sued out by the plaintiff against A as principal defendant and B his trustee, and wrongfully neglected to levy the plaintiff’s execution upon the goods so attached : —plea, that the defendant, before he attached the goods on the plaintiff’s writ, had attached them on a writ sued out by C against A as principal and B his trustee, and that he afterwards levied C’s execution on tne same : — replication, traversing an allegation in the plea, that after the attachment on C’s writ,66 the defendant took the goods into his possession subject to that attachment.” Held, that the replication was ill, as being a traverse of an immaterial allegation; that it could not be understood as a denial that any valid attachment was made on C’s writ, and that if it could, still it was ill, as being argumentative.
    Declaration alleging that the defendant, as deputy sheriff, attached goods on a writ of attachment sued out by the plaintiff against A as principal and B his trustee and did not apply them in satisfaction of the plaintiff’s execution, but falsely returned thereon, that previously to the "plaintiff’s attachment, the defendant, in obedience to a writ sued out by C against A as principal and B his trustee, summoned B, who then had the goods in his possession, whereas they had before been taken out of his possession by the defendant. Held, that it was not necessary for the plaintiff to state whether on his writ the goods were attached in the hands of the trustee or in the common mode; that it was sufficient to allege that the execution was delivered to the defendant within thirty days after judgment, to be levied on the goods attached, without averring that the defendant could have seized them on the execution, or that he was requested to seize them; and that the allegation that the return was false, in stating that the goods were under a previous attachment, was material and traversable.
    This was an action upon the case against the defendant, a deputy sheriff, for a supposed breach of his official duty, in not levying an execution in favor of the plaintiff against one Reuben Putney, and for a false return on the execution.
    In the first count it is alleged, that the defendant duly attached certain goods, the property of Reuben Putney, on a writ of attachment in favor of the plaintiff against Reuben Putney as principal defendant and John Putney his trustee ; and that he wrongfully neglected and refused to levy the execution issued on the judgment recovered in that suit, on the goods so attached, so that the plaintiff thereby wholly lost his debt and costs of suit.
    To this count the defendant pleads, that before he attached the goods on the plaintiff’s writ, he attached them in the hands of John Putney on a writ of attachment in favor of Benjamin Dow against Reuben as principal, and John as trustee, and 
      H while the same were subject to the attachment so made, did take the same goods into his possession, still subject to the same attachment,” and also on a writ of trover in favor of Dow against Reuben, which writ of trover was afterwards abandoned; that he made due return of the writ of Dow against Reuben and John his trustee ; that Dow recovered judgment thereon against Reuben ; that an execution thereon against Reuben and against the goods in the hands of his trustee, was delivered to the defendant within thirty days next after the rendition of the judgment, and that the same goods, so attached as before mentioned, were duly sold on that execution, excepting so much thereof as had been taken out of his possession, by virtue of a writ of replevin duly issued in favor of one Brown and others, which writ of replevin, the defendant avers, was, at the time of filing his plea, still pending and undetermined.
    
      March 27th, 1826.
    
      April 2d, 1827.
    The plaintiff, in his replication, traverses the allegation that the defendant took the goods into his" possession subject to the attachment made upon the writ in favor of Dow against Reuben Putney and John his trustee.
    To this replication the defendant demurs, 1. because it does not deny that the goods were attached in the hands of the trustee at the suit of Dow, before they were attached at the suit of Hale, and it attempts to submit to the jury a question of law, viz. whether the goods, when taken by the defendant, were or were not under an attachment; — and 2 because it tenders an immaterial issue.
    The second count is for a false return, and is sufficiently set forth hereafter in the opinion of the Court.
    The cause was argued by Fletcher and Bartlett, for the p±aintiff, and by - Sullivan, for the defendant.
   Wilde J.

delivered the opinion of the Court. [After stating tne pleadings on the first count.] We think it very clear that this replication is insufficient. The allegation traversed was unnecessary and immaterial. Independent of this allegation, the facts stated in the plea constitute a valid attachment on Dow’s writ. By the service of the writ on the trustee the goods in his hands were virtually attached. A lien was created thereby, which could not be defeated by a subsequent attachment. If this attachment had been dis» solved, the fact should have been distinctly averred in the replication : or, if it were intended to deny the attachment, some fact essential to its validity should have been traversed. It has been argued, that the replication does substantially deny that there was any valid attachment on Dow’s writ, because it traverses the fact, that the defendant took the goods subject to the prior attachment, which in effect, it is said, negatives the attachment. If, however, the replication could be understood in this sense, it would be ill, because argumentative. But it cannot be so understood, for the traverse might be .verified either by proving that no prior attachment had been made, or that it had been dissolved, or admitting all the facts averred in the plea, the plaintiff might show that the attachment was void for some legal defect, thus referring to the jury a mere question of law, against an established rule of pleading. A traverse thus loose and uncertain is clearly inadmissible.

The second count is for a false return. The charge is, that the defendant falsely returned on the plaintiff’s execution, that in obedience to a writ in favor of Benjamin Dow against Reuben Putney principal and John Putney trustee, he had summoned John Putney, who, at the time of the service of that writ, had the goods in his possession ; whereas in truth and in fact, John had not the goods then in his possession, but the same had before been taken out of his possession by the defendant.

To this count the defendant pleads and sets forth the same proceedings under the trustee process in favor of Dow, and his return at large on the plaintiff’s execution, and concludes by averring that the return is in all things true, and in no respect false, with a verification.

To this plea the plaintiff demurs specially.

It is not however material to state or consider the causes of demurrer assigned, because the defendant’s counsel admits that the plea is bad. But he says it is in bad company, and that the first fault is in the declaration. So that the question is, whether the action can be maintained on the second count.

It is averred in this count, that the plaintiff having a cause o' action against Reuben Putney, sued out a trustee process against him and John Putney his trustee, — that that writ was delivered to the defendant for service, and was by him duly served and returned, — that goods of great value were attached thereon to respond the judgment which might be recovered in that suit, — that that action was duly entered, and judgment recovered, and that within thirty days next after the rendition of judgment, execution was sued out and delivered to the defendant, to be by him duly served and levied upon the goods of Reuben, so attached as aforesaid, — and that the defendant would not and did not levy the execution on the goods, but falsely returned that the same were under a previous attachment in favor of one Bow, whereas in truth they had never been attached on Bow’s writ.

The defendant’s counsel contends that these facts are not sufficient to maintain the action. It is said that the attachment is not alleged with sufficient certainty, because it does not appear whether the goods were attached in the hands of the trustee, or in the common form. But it does not appear to us, that it is necessary to be thus particular, especially as the attachment was made by the defendant and the mode of attachment must necessarily be within his knowledge.

It is also objected, that it is not averred that the defendant could have seized the goods attached on execution, nor that he was requested to seize them. But these objections cannot prevail, for it was the duty of the defendant safely to keep the property attached, if it was attached in the common form, and if attached in the hands of the trustee, to demand it of him It is sufficient therefore for the plaintiff to aver that the execution was delivered to the defendant within thirty days after judgment, to be levied on the goods attached, and it was for him to show in his defence, why the execution was not thus levied. The only reason stated in his return is, that the goods were subject to a previous attachment; and this part of the return is averred to be false. This averment, it is said, is immaterial; but if it were so, still the defendant would be liable, because he shows no cause why the execu ■ tian was not levied on the goods attached. The averment however is material, and the defendant should have traversed it. And if the issue thereon had been found in his favor, he would have been entitled to judgment, notwithstanding the goods had been taken out of the possession of the trustee after the attachment, for this would not have discharged the trustee’s lien, as was decided in the case of Burlingame v. Bell, 16 Mass. R. 318.

Defendant’s second plea adjudged bad. 
      
       See Parker v. Kinsman, 8 Mass. R. 486.
     