
    Job Knap versus Phebe Sprague.
    Where a constable, who had attached personal property on an original writ, delivered the same to a stranger, talcing an accountable receipt for the same, a return by him of an attachment of such property in a second suit against the same person, without an actual seizure of it, does not bind the property; and the constable, not having demanded it of his bailee within thirty days after judgment in the first suit, lost his right to have possession of the property.
    This action was assumpsit, to recover the value of an ox-wagon and one pair of oxen ; and it was tried upon the general issue joined by the parties, before the Chief Justice, at the sittings here after the last September term, when a verdict was found for the plaintiff, by direction of the judge, for 114 dollars 26 cents damage, being the value of those chattels, with interest, from the time of the demand hereafter mentioned, subject to the opinion of the Court upon the following report of the judge who presided at the trial.
    The declaration contained two counts, one for the wagon, and the other for the oxen. To support his declaration, the plaintiff gave in evidence two receipts or memorandums in writing, signed by the defendant, bearing, date the 16th of November, 1807 ; one acknowledging the receipt *of the wagon, the other of the oxen, and promising to deliver them to the plaintiff when called for.
    The plaintiff further gave evidence that he was a constable ; that he attached the wagon and oxen, November 7, 1807, by virtue of a writ of the same date, in favor of Benjamin Craggin against Hosea Sprague, as the property of the said Hosea; that at a Court of Common Pleas, holden at Worcester, in March, 1808, judgment was rendered for said Craggin, in the said action, for 60 dollars and 9 cents damage, and 11 dollars 2 cents costs of suit; but he proved no demand upon the defendant for a delivery to him of the wagon and oxen, within thirty days after the rendition of the judgment aforesaid. The plaintiff then proved that, on the 5th of March, 1808, he attached the same wagon and oxen, by virtue of another writ in favor of Benjamin Craggin and another, against the said Hosea Sprague, as the said Hosea’s property; that at a Court of Common Pleas, holden at Worcester, in June, 1808, judgment was rendered in the last-mentioned action for the plaintiffs, for 52 dollars 50 cents damage, with costs of suit; that before the rendition of said last-mentioned judgment, he requested the defendant to deliver him the said wagon and oxen ; but he offered no evidence to prove that the defendant had any knowledge of the last-mentioned suit or attachment.
    The defendant then proved that, when she gave her said receipt for the said wagon and oxen, they were immediately redelivered by her into the possession of the said Hosea; that they never after-wards came into her possession; that the plaintiff, at the same time, informed her, that if she converted the said property to her own use, he could recover only the debt and costs, which the said Benjamin Craggin should recover against the said Hosea Sprague in the suit aforesaid.
    The plaintiff endorsed on the second writ the attachment of the same chattels, because he conceived that they remained in his possession by virtue of the former * attachment and the said receipts of the defendant, but did not again seize the same chattels after his first attachment.
    If the Court, upon these facts, should be of opinion that the plaintiff had a right to recover of the defendant a sum of money sufficient to satisfy both of the judgments aforesaid, then the verdict was to stand ; or, if the Court should be of opinion that the plaintiff ought to recover a sum of money sufficient to satisfy either of the said judgments, the verdict was to be amended conformably to such opinion; but if the Court should be of opinion that the plaintiff ought not to recover any thing of the defendant, then the verdict was to be set aside, and a general verdict for the defendant was to be entered, and judgment rendered accordingly in either case.
    
      A. Bigelow and Howe,
    
    for the defendant, contended that the plaintiff, by virtue of the attachment, acquired but a special property in the chattels, which expired in thirty days after judgment for the creditor, when the whole property again vested in the debtor. If the defendant had refused to deliver them to him after the expiration of the thirty days, she would have been liable to an action by him. The pretended second attachment was not binding on the chattels, because there was no actual possession and custody of them.  The defendant was bound to no more by her receipt, than the officer at the time was bound to, which was, if the chattels were not seized in execution within thirty days after judgment rendered, that he should deliver them up to the judgment debtor. As she was the plaintiff’s servant, if she did what her master was bound to do, he can have no cause of action against her. When the receipt was given, the defendant’s responsibility extended only to thirty days after judgment in that action, and no after act of the plaintiff could impose a new obligation upon her without her consent. But the second attachment had no legal effect. The property was then in the actual possession of the debtor, and this by the act of the plaintiff’s servant, and with his consent; and if the attachment * was not binding, the plaintiff receives no damage from the defendant’s neglect to deliver him the chattels.
    
      Blake and B. Adams for the plaintiff.
    This was a specific con tract on the part of the defendant to deliver the chattels to the plaintiff, when he should demand them of her. It is in writing, and has in it no reference to the plaintiff’s office, or to the attachment made by him. The plaintiff demands no more than the defendant undertook to perform. The plaintiff was accountable for the chattels to the judgment debtor, if the.y were not seized in execution within the thirty days ; so his property did not cease then. And as to the defendant, the plaintiff had the absolute and general property. The second attachment was good, and bound the chattels. Nor was it necessary for the plaintiff to notify the defendant of it. She was already bound to hold the chattels until called for by him. It will be noticed that the case does not find that the plaintiff knew of the delivery by the defendant to the debtor. Officers ought to be protected in this practice of delivering goods on receipts of responsible persons. It is utterly impossible for them to "keep the personal possession of all the chattels they' attach; and if their lien ceases on delivering them over to their servants, creditors as well as officers must be very insecure.
    The action was continued nisi for advisement; and, at the succeeding November term in Suffolk,
    
    
      
       5 Mass. Rep. 163, Lane & Al. vs. Jackson.
      
    
   The Court

observed that the facts presented a novel question. But it was very clear that, after the plaintiff had delivered the chattels he had attached to the defendant, taking her receipt and engagement to be responsible for them upon his demand, they could no anger be considered as in the constructive possession of the plaintiff as constable. The second attachment was therefore void, since neither the officer nor his servant had, at that time, the possession of the chattels supposed to be attached. There is no doubt that an officer, having attached goods and chattels, or other estate, by virtue of one original writ, *may return a second attachment of the same property, so long as he has either the actual or constructive possession thereof, upon another original writ, whether at the suit of the same plaintiff or of another, But here the goods were wholly out of the officer’s possession, and in the possession of the debtor, when the second writ came to his .hands. Upon the facts reported, it is our opinion that the verdict be set aside, and that a general verdict be entered for the defendant, and that judgment be rendered accordingly. 
      
      
         [Ludden vs. Leavitt, (ante, 104,) Perley vs. Foster, (ante, 114,) Warren vs. Leland, (post, 265,) the special property and constructive possession seem to have been considered as remaining in the officer after the goods had been delivered over by him to the bailee ; the bailee being considered as his servant. So in Bond vs. Padelford, (13 Mass. Rep. 394,) and Commonwealth vs. Morse, (14 Mass. Rep. 217.) And in Brounell vs. Manchester, (1 Pick. 232,) where the goods attached were delivered to a bailee, and afterwards came into the possession of the debtor, it was held that the officer had such possession as to maintain trespass ’against him who took them from the bailee and delivered them to the debtor. In Lyman vs. Lyman, (11 Mass. Rep. 319,) it was held in an action against the bailee on his promise to deliver the goods attached, that it was not competent for him, or the debtor, to object to the validity of the attachment for want of actual seizure or possession of the goods by the officer. And in Whittier vs. Smith, (11 Mass. Rev. 311,) in a like action, where goods attached had been delivered ,o the bailee, and, before the return day, were demanded to be taken on another suit; and afterwards the first suit was abandoned, and another instituted by the same plaintiff, whereon the goods were attached and sold on execution, which issued on the judgment in that suit; held that these facts furnished no defence to the suit. So in Jewett vs. Tony, (11 Mass. Rep. 219,) it was held, in a like action, that the bailee could not object to the want of seisin or possession by the officer. The only ground, upon which the case of Knap vs. Sprague can be supported, is that stated in Cooper vs. Morey & Al., (16 Mass. Rep. 5,) viz , that “ the officer has no action against the receiptors, if he made no demand of the chattels within thirty days after the judgment, where the goods shall have been in the possession of the debtor.” But such demand has been held not to be necessary, where the debtor has sent the property out of the commonwealth, or where a demand would have been nugatory. — Webster vs. Coffin, 14 Mass. Rep. 196.—See Howard vs. Smith, 12 Pick. 202. — Robinson vs. Mansfield, 13 Pick. 139. —Ed.]
     