
    Philip Bagley versus Gilman White.
    Whore goods have been attached, but the officer has not retained possession of them9 notice of the attachment will not preserve his lien against an attachment by another officer.
    Thus A, a deputy sheriff, having attached goods of B in B9s store, appointed B o clerk liis keeper of the goods. C, another deputy sheriff, having attached other goods of B, deposited them in the same store, but appointed no keeper, and did not take the key of the store, which was in the hands of A9s keeper. After some weeks, A removed his goods and discharged his keeper, and soon afterwards attached the goods deposited as above mentioned, having notice that they had formerly been attached by C. It was held, that this attachment by A was valida
    This was an action of trover for certain goods, in v-nich the plaintiff, a deputy sheriff, claimed to have a special property, by virtue of an attachment made by him in favor of certain creditors of one Bartlett, the owner of the goods, and which the plaintiff alleged to have been taken out of his possession by the defendant, another deputy sheriff, upon certain writs of attachment sued out by other creditors of Bartlett.
    At the trial it appeared, that Bartlett kept a store in New buryport, and another in Amesbury. The stock in Newburyport was attached by White, and remained under the care of one Pierce, the clerk of Bartlett, who was constituted keeper by a written authority from White. The stock in Amesbury was attached by Bagley, and by the request of Baitlett was brought to the store in Newburyport in order to save expense, and remained in the store from thirty to forty days. White, on a Saturday, removed the goods attached by him, except a box of hats, which were left by mistake, and released Pierce at that time from his care of the goods. The goods attached by Bagley remained in the store until the following Monday, when part of them were attached by White.
    Bartlett testified, that he did not know that the goods were in his possession at any time after their attachment by Bagley ; that they were not delivered to him by Bagley ; that they were placed in the back part of his store, where he had daily access in common with other people ; and that he paid the rent of the store until some time after the goods were removed.
    Nov. 9th.
    
    Pierce testified that the goods, of which he was the keeper for White, were in the front store, except the box of hats ; that he had exclusive possession of the front store ; that he received the goods sent from Amesbury as the clerk or agent of Bartlett; that Bagley said he did not want a keeper ; that Bagley never appointed him to keep the goods, and that he never considered himself as having any control of them whatsoever ; and that he should not have felt authorized to give notice to any person that they were under attachment ; that the door of the front store was locked day and night, and the only access to it was through the back store ; that the door of the back store was open every day, and that it opened upon a common passage way ; that the goods were brought from Amesbury in the morning ; that Bagley called in the evening and requested him to take care that his goods were not mixed with White’s, and that Bagley never came to look after them from that time until they were attached by White ; that the witness offered the key to Bartlett on the Saturday evening after he was discharged by White ; that he opened the store on the following Mon day, and that White came on that day with Stedman, a creditor of Bartlett, and inquired if the goods were not the same that Bagley had attached, and was answered in the affirmative, and was ordered by Stedman to do his duty.
    The plaintiff was to be nonsuited or the defendant defaulted, according as the Court, upon this evidence, should direct.
    
      Cummins and Gerrish, for the plaintiff,
    contended that no toriety of an attachment was sufficient to preserve the lien, and here both the defendant and the creditor knew that the goods were attached by the plaintiff. The store was White’s pro hac vice, at the time when the goods were carried there, and he may be considered as bailee of the goods, and bound to take care of them like any naked bailee. The payment of the rent is the only circumstance which has a tendency to show that Bartlett retained possession of the store, but he paid it pursuant to his contract, and non constat that he has not his remedy over against the officer. They cited Baldwin v. Jackson, 12 Mass. R. 131; Train v. Wellington, ibid. 495; Gale v. Ward, 14 Mass. R. 352; Bridge v. Wyman, ibid. 190; Gordon v. Jenney, 16 Mass. R. 464; Denny v. Warren, ibid. 420.
    
      May term, 1827
    
      Jk[arston and Shillaber, contra,
    
    cited Lane v. Jackson, 5 Mass. R. 157; Watson v. Todd, ibid. 274; Lyman v. Lyman, 11 Mass. R. 319; Baldwin v. Jackson, ubi supra; Vinton v. Bradford, 13 Mass. R. 116; Knap v. Sprague, 9 Mass. R. 261.
   Putnam J.

delivered the opinion of the Court. We have examined the authorities and considered the arguments adduced by the counsel for the plaintiff, with a desire to support the attachment which he made, and which it seems to us he did not intend to abandon ; but we are all satisfied, that the lien originally created has not been continued.

The general rule is well known, that the officer must have the possession of the goods attached, actually or constructively ; and that doctrine is found in all the cases cited for the plaintiff. In Baldwin v. Jackson, the furniture attached was delivered to a person to keep for the officer, and while n the hands of the keeper, the second attachment was made, after notice. So in Train v. Wellington and Vinton v. Bradford; the second attachment was made by one offi cer, while the goods were in the actual custody of anothei and the first who attached them. So in Gale v. Ward; the attachment was incomplete, because the machines attached were not removed, nor put into the hands of a keeper, to give notice to any officer who should afterwards come to attach them. In Bridge v. Wyman, a ship attached was permitted to be in the visible possession of the debtors, and a nominal delivery only was given to Coffin, the servant of the attaching officer, and no notice was given to the officer who made the second attachment; and the first was held to be a mere nominal attachment.

In the case at bar, the plaintiff seemed to think that he should not want any keeper, and that the goods would be safe in the debtor’s store, where they were put after they were attached. That would have been sufficient, if the plaintiff had kept the key. But he had not the key, nor any control of the shop, nor any possession by any one as his servant, for thirty or forty days after the goods were put there. On the contrary, the debtor had the actual possession of the store in which the goods were put, and paid the rent for it.

But it is contended that the defendant knew that the plaintiff had attached the goods, and so the attachment should be considered to be void as against him. All the evidence upon this point is, that the defendant knew that, some thirty or forty days before, the plaintiff had attached the goods, and that they had been afterwards in the possession of the debtor as has been before stated. The inference.to be drawn from those facts is matter of law, and is the subject of this inquiry. If it should be, that the lien originally created had been continued, then the defendant might be said to know that the goods were under attachment; but if not, then it could not be said that he knew they were. The facts would rather warrant the assertion, that the defendant knew that the attachment which had been made, had for some reason or other been discharged, than that he knew the original attachment subsisted when he undertook to attach.

We regret that an old and faithful officer should make such a mistake, and hope that he may not eventually suffer ; but however that may be, we are bound to administer the law as we find it. The plaintiff must be nonsuited. 
      
       See Dunklee v. Fates, 5 N. Hamp. R. 528; Denny v. Willard, 11 Pick. R. 525; Robinson v. Mansfield, 13 Pick. 139; Fettyplacev. Dutch, 13 Pick. 388.
     