
    Elisha Lyman versus Francis Lyman and Another.
    Where certain friends of a debtor, against whom a deputy sheriff had a writ of attachment, gave to the deputy a receipt and promise in writing, to deliver him, on demand, certain goods of the debtor, of which the deputy returned an attachment,— it was held not to be competent for the receipters, in defence of an action by the deputy upon their receipt, to except that no attachment of the goods had been actually made.
    Nor was it a sufficient defence, in such action, that the debtor had been, by another deputy, taken and committed in execution upon the suit, in which such attachment was returned, and had sworn out of jail; such commitment having been made without the privity of the creditor, and the goods having been demanded of the receipters within thirty days after judgment was rendered against the debtor.
    This was an action of assumpsit upon a written promise of the defendants to deliver to the plaintiff, upon demand-, certain personal chattels, which he, as a deputy sheriff, had attached as the property of one Joseph D. Lyman, at the suit of William, Boardman.
    
    The action was tried upon the general issue, April term, 1813, before the present chief justice. It was in evidence that the plaintiff returned upon Boardman?s writ that he had attached the articles in question as the property of the debtor. The plaintiff went to the house of the said J. D. L. with the said writ, and the said J. D. L. mentioned the articles as in his possession, of which the plaintiff made a schedule, and then the two present defendants signed the receipt and promise on which this action was brought, and the articles were afterwards put into their possession by the said debtor. Judgment being obtained by Boardman, an execution was sued out and sent to one Caleb Cook, a deputy sheriff, without any special directions; the plaintiff then having ceased to be a deputy. Cook called on the plaintiff for the property attached on the original writ, and received from him the said receipt of the defendants, with which he went to them and demanded the articles.
    They evaded his demand for some time, saying that pari [ *318 ] of the articles were *in their possession, and the rest they supposed were spent. After this, and after the expiration of thirty days from the rendition of the judgment, Cook arrested the body of Lyman, the judgment debtor, and committed him to prison; from whence he was, after due notice to the creditor, liberated under the act for the relief of poor debtors. After he was arrested, he gave directions to the defendants to dispose of the articles they had receipted for, to his use; which was done. A suit had been instituted by Boardman against the plaintiff, for misfeasance, in not having the property returned by him as attached, whereon to levy the execution ; and judgment was rendered in said suit against the now plaintiff upon default, for the amount of Board-man’s judgment against Lyman, which judgment against the plaintiff has been satisfied.
    The defendants’ counsel objected that there was no such attach ment as would form a consideration for the promise declared on; but, principally, that the arrest of J. D. Lyman upon the execution discharged the contract declared on; so that the defendants were not answerable in any way thereon.
    The judge directed the jury that the plaintiff was entitled to a verdict; and they found accordingly, and assessed the plaintiff’s damages according to the amount recovered against him by Board-man. The defendants moved for a new trial, on the ground of a misdirection in matter of law.
    
      Allen, in support of the motion.
    The chattels in question were never duly attached by the plaintiff. It does not appear in the case that he ever even saw them; much less seized or attached them. To constitute an attachment of goods, the officer must have the actual possession and custody of them. 
    
    Our writ of execution, in its power and effect, answers to the several forms used in the English courts. As in England a creditor can have but one writ of execution, so here the creditor must elect the mode of service: he can cause his execution to be served but in one manner. Having in * this case [ * 319 J taken and committed the body of the debtor, the creditor could not, while the debtor remained a prisoner in execution, levy the debt on his goods or lands. It follows, then, that, during the same period, no action could have been maintained against the defendants, upon their receipt and promise declared on in this case. And if the right of action was once extinguished, it is gone forever The deputy sheriff, who served the execution, returned that the debtor had no property. The sheriff and all his deputies constitute but one officer; and the plaintiff cannot now say that there was property. 
    
    
      Ashmun for the plaintiff.
    
      
       5 Mass. Rep. 157, Lane & Al. vs. Jackson.
      
    
    
      
       3 Mass. Rep. 561, Brinley vs. Allen. —2 Mass. Rep. 486, Champion vs. Noyes. —1 Sulk. 320, Smallcomb vs. Buckingham. — Hob. 52, Foster vs. Jackson. —5 Mass. Rep. 274, Watson & Al. vs. Todd & Al. — 6 Mass. Rep. 327, Gardner vs. Homer. — 1 B. & P. 632, Cheetham vs. Ward
      
    
   Parker, C. J.,

delivered the opinion of the Court.

The receipt and promise, upon which the present action is brought, constitute a lawful contract, and the plaintiff is entitled to judgment unless the objections made on behalf of the defendants ought to prevail.

The first objection is, that the property never was attached, and that therefore no consideration exists for the undertaking of the defendants ; and this objection results from the evidence that the goods ieturned as attached were not actually seized by the officer, although he was in the house of the debtor where the goods were kept at the time.

We cannot think that the debtor himself, or his friends, can take this exception. Although an actual possession of goods attached may be necessary,-to prevent the operation of a second attachment, yet, if the officer, for the accommodation of the debtor, at the instigation of his friends, relieves him from the inconvenience of having his goods removed, the debtor can have no ground of complaint; and the receiptors are precluded, by their own act, from calling in question the validity of the attachment.

With respect to the second objection, viz., that the seizing in execution of the body of the debtor makes void all liability in consequence of the attachment of the goods, and the receipt, we are not satisfied that it has any weight.

In the'first place, it is observable that this was done without the. direction, either of the creditor, or of the plaintiff [ * 320 ] * who made the attachment. It would be manifestly unjust that the creditor, who had obtained security by the attachment, and also had, in consequence of the vigilant pursuit of his proper remedy, obtained a right of action against the sheriff! should lose that security, because another officer, without his consent, had chosen to execute the final precept in a manner different from what the creditor contemplated. And it would be still more hard that the officer, who had made himself liable to the creditor, should lose the benefit of the contract, which was made to indemnify him for departing from a strict performance of his duty for the benefit of the debtor; because another officer should manage the execution of his own head, probably with the connivance of the debtor, so as to defeat the creditor’s security.

But there is no reason for supposing that the .mere arrest and commitment of the debtor operates to discharge the contract made between the attaching officer and the present defendants. A satisfaction of the judgment would undoubtedly have that effect; because it would take away all consideration for the promise. But a liberation, under the act for the relief of poor debtors, has not that effect; the act itself providing that the estate, goods, and chatte’ of the debtor shall remain liable for the debt after the liberation o» the debtor from prison.

A taking and actual commitment in execution, by direction or consent of the creditor, may be a satisfaction at common law, so as to prevent all future process for the debt. But the privity of the creditor is necessary to give it this effect, In England, the taking out of a copias ad satisfaciendum is considered to be an election to have the body, instead of the goods or lands; but this election is made by the creditor himself. Our writ of execution comprehending the copias, fieri facias, and levari facias, the taking it out is in no degree indicative of the manner in which it is to be served. The election is therefore made when the directions are given to the sheriff to take land, goods, or the body, or when the service is made by the sheriff in either of those ways, with the privity or subsequent assent of the * creditor. But if [ * 321 ] the sheriff acts contrary to the directions of the creditor, or against his manifest interest, the creditor shall not be so bound as to lose a security which he had previously and lawfully acquired.

The only view in which this case can be considered as doubtful is, that, as the execution was served by an arrest of the body of the debtor, the goods attached must be considered as released upon that act; because they are holden only until thirty days after judgment; and so that the promise of the defendants to deliver the goods, which was available only to enable the sheriff to satisfy the execution, is discharged.

But we think that the demand upon the sheriff, within thirty days, of the property attached, and the subsequent demand made upon the defendants, for the very purpose of satisfying the execution out of their proceeds, connected with the absolute liability of the plaintiff to the creditor, fixed the right of the plaintiff to enforce his contract, or to recover damages for the breach of it; and that the subsequent arrest of the debtor, without direction from the creditor, and without the consent of the present, plaintiff, does not in any degree impair that right.

Judgment according to the verdict. 
      
      
        Strange, 444, 643.
     
      
      
         Almy & Al. vs. Wolcott, 13 Mass. Rep. 73. — Bailey vs. Jewell & Al. 14 Mass Rep. 155.
     
      
       See Jewett vs. Torrey, ante, 219. — Bridge vs. Wyman & Al. 14 Mass. Rep 190. — Andrews vs. Ludlow & Trs. 5 Pick. 28.
     