
    John Bond versus Harry Padelford.
    An officer, who has attached personal chattels upon mesne process, and delivered them to a third person upon his accountable receipt, may lawfully take them out of the possession of the general owner, who has been permitted to retain them by such receiver, notwithstanding such delivery ; and this after he has completed the service of the process by giving a summons.
    Trespass for taking and carrying away six oxen, four cows, and four steers, the property of the plaintiff, and converting them, &c.
    It was agreed by the parties, that the defendant, being a deputy sheriff of this county, on the 27th of January, 1815, and having in his hands a writ of attachment in favor of one George Dutch against the said Bond, returnable on the third Monday of March then next, by virtue of that writ attached the said cattle ; and, without removing them, took an accountable receipt from one Stephen Flagg for the same, who then was, and had still continued to be, of sufficient ability to respond to Padelford for the value of the cattle, which were permitted to remain in Bond's possession, with the knowledge of Padelford, and without any objection on his part. Afterwards, on the 7th of February then next, the said cattle being found in the possession of Bond, and Padelford still having the said writ in his hands, he retook the cattle ; and afterwards returned the said w:it to the court to which it was returnable, and where it was duly filed, with the following return, namely, — “ Worcester ss. Jan. 27, 1815. By virtue of this writ I attached six oxen, four cows, and four steers, the property of the within-named John Bond, and at the same time gave him a summons in hand. Harry Padelford, Deputy Sheriff."
    
    *If, upon this statement, the Court should be of opinion that the action could be maintained, the plaintiff’s damages were to be assessed by a jury ; otherwise, he was to become nonsuit.
    Burnside, for the plaintiff,
    contended, that the defendant’s conduct, as disclosed in the case, besides being extremely oppressive, was a direct violation of an agreement between the plaintiff, the defendant, and Flagg ; by which the defendant waived the special property he had acquired in the cattle by attaching them, so long as Flagg should continue to be' sufficient responsibility. It is always at the debtor’s request, that such an accommodation is made, and it is always understood that it is to continue until judgment is rendered in the suit; unless in the mean time the receipter conceives it unsafe to permit the chattels to remain with the debtor. That was not the case here.
    
      Padelford's authority under the writ ceased, as soon as he had made the attachment, and given the debtor a summons. The writ cannot justify him after he had fully obeyed its precept. 
    
    
      Jl. Bigelow and Hinds, for the defendant.
    
      
      
        Brinley vs. Allen, 3 Mass. Rep. 561. — Cleverly vs Brackett & al., 8 Mass. Rep. 150
    
   By the Court.

This action is conceived on mistaken principles. The present plaintiff had no interest in the agreement made between the defendant and Flagg. He had no right to the custody or use of the cattle, after they were attached. He held them merely by the indulgence, and at the pleasure, of the officer, or Flagg, who can be considered, in this transaction, in no other character than as the servant of the officer. Flagg could have maintained no action for the cattle in his own name ; but he might lawfully, at any time, have taken them out of Bond's possession, notwithstanding any contract between himself and the officer. So might the officer, although he had made a return of the writ. The special property remained in him, and he had a complete right to the possession ; and his exercising that right was no injury to Bond.

Plaintiff nonsuit.  