
    * Benjamin Rich and Another versus Shubael Bell.
    In case against an officer, for neglecting to keep goods attached by him, so that they might have been taken in execution, although the officer had neglected his official duty; yet it appearing that if he had adhered to it the plaintiffs would have derived no benefit from their attachment, they were held entitled to nominal damages only.
    Case against the defendant, a deputy sheriff of this county, to recover damages for his not keeping goods, attached at the suit of 'the plaintiffs against one John Gulliver, until final judgment, so that they might have been taken in execution.
    It was agreed by the parties that, on the 11th of May, 1818, Calvin Washburn and twelve others were either creditors of Gulliver, in consequence of loans of money made to him before that time, or were responsible as endorsers or sureties on his promissory notes, which had not become payable. Some of the said persons, apprehensive of sustaining a loss by reason of the failing circumstances of Gulliver, required security from him; and in order to obtain this object, it was agreed that he should make his promissory note, payable jointly to those persons, for the sum of 5500 dollars, the exact amount of their loans or liabilities not being then ascertained ; and that a suit should be instituted on said note, and an attachment laid on his stock in trade; and on recovering judgment a distribution of the proceeds arising from the sale of said stock should be made among them, so far as should be necessary for their indemnity. Such an attachment was made, and' the action entered at the Court of Common Pleas, July term, 1818. Afterwards, on the same day, but not until after other attachments had been made, an agreement was made between Gulliver and Washburn, and the other twelve creditors, by which certain sums were to be received by the latter from the proceeds of the goods, if sufficient therefor, and the surplus, if any, to be paid over to Gulliver.
    
    Immediately after the attachment aforesaid, several other creditors of Gulliver sued writs, which they delivered to the defendant, with directions to attach the same * stock. Of these [ * 295 ] second attaching creditors, the present plaintiffs were the last in order. Washburn and the other first attaching creditors, having ascertained the sums due to them respectively, it was agreed that judgment should be rendered in their suit for the amount of those sums only. Afterwards, and before the sitting of the court at which the writs of attachment were returnable, the said first and second attaching creditors, believing that the goods attached would lessen in value, and that the proper season for selling them would be lost, if they should be kept until final judgment could be obtained, addressed a letter to the defendant, directing him, for the purpose of preventing waste and expense, to cause the goods he had attached to be sold at public auction, and to hold the proceeds thereof to satisfy the judgments to be recovered, in the order of the respective attachments. The plaintiffs refused to sign the letter, or to assent to the sale.
    
      Gulliver having given his consent to the sale, the defendant, in conformity to the said directions, and having first advertised the sale in the manner prescribed for sales upon execution, proceeded to sell the goods attached, under the management of duly licensed auctioneers
    
      Before the said sale it was ascertained, and was known to the defendant’, that the said goods were not worth, and would not produce upon a sale thereof, a sum sufficient for the payment of the first attaching creditors, and of those of the second attaching creditors who were prior in order to the plaintiffs. The sa’je was fairly conducted, and a greater sum was produced, than would have been, if the goods had been kept and sold upon execution.
    Judgment was rendered in all the suits at the same term ; and after satisfying the executions in favor of the first attaching creditors, there did not remain in the defendant’s hands, of the proceeds of the goods sold as aforesaid, a sufficient amount to satisfy the executions of such of the second attaching creditors as were prior in their attachments to the plaintiffs. But without satis- [ * 296 ] fying * these last executions, the defendant retained sufficient to satisfy the debt and costs recovered by the plaintiffs in their said suit.
    Within thirty days from recovering their judgment, the plaintiffs delivered their execution to a coroner (the sheriff’s office then being vacant), who demanded of the defendant to expose to him the goods attached on the original writ, that they might be taken by him upon the said execution. This demand the defendant was unable to comply with, from the circumstances before recited.
    It was agreed by the parties, that such judgment should be rendered upon the facts stated, as to the Court should appear legal and fit.
    
      Shaw, for the plaintiffs.
    The question in this case is wholly between different creditors of Gulliver, and is to be treated without regard to any equitable considerations, as affecting the defendant in his official character. The decision depends altogether on the construction of our laws respecting the attachment of property on mesne process. It is insisted for the plaintiffs, that the agreement entered into between the first attaching creditors and Gulliver, their debtor, dissolved their attachment, and the plaintiffs’" claim under their attachment was let in. What was before contingent, as depending upon the other creditors’ legal pursuit of their rights under their attachment, became a certain and adequate security. The conditional lien of the plaintiffs became absolute and perfect, by means of the conduct of those who had the prior lien.
    By the laws of the colony, “ all goods attached upon any action— shall stand engaged until the judgment,” &c. . By the statute of 1784, c. 28, § 11, “All goods and estate attached upon mesne process—shall be held for the space of thirty days after final judgment, to be taken in execution.” The provision of the statute of 1804, c. 83, relating to the attachment of shares in the stock of incorporated companies, in the sixth section, puts beyond * question the right of a party under a second attachment, [ * 297 j situated like the present plaintiffs. Where property is pledged a second time, and the first claim is satisfied or waived, the second holds without condition.
    To protect goods attached in any suit from the effect of after attachments, the law requires that the officer retain the possession of them, until thirty days after the judgment, and that upon receipt of the execution, and not before, he proceed to sell them. Any deviation from this course dissolves the attachment, and makes the goods liable to the claims of those who may have a posterior attach ment upon them, or to new attachments .
    The defendant cannot resist the demand of the plaintiffs, on the ground that, if he had not thus dissolved the attachment of the other creditors, there would not have been sufficient to satisfy the demands of those creditors, and nothing would have'been left for the plaintiffs. Nor can he show this in mitigation of damages .
    In selling the goods in the manner he did, the defendant did not act officially, but as the agent or trustee of the creditors who assented to the sale. Their attachments were thereby wholly relinquished, and it cannot avail the defendant, that they proceeded to judgment in their suits. The goods being discharged from the lien, in virtue of the arrangements made, and the attachment of the plaintiffs still remaining in force, they have a right to have their judgment first fully satisfied, before the other creditors can come in for any part .
    
      Davis, Solicitor-General, and Aylwin, for the defendant,
    contended that the attachment of the prior creditors was not dissolved, by the transactions disclosed in the case. The sale was agreed to and sanctioned by the- united act of the officer, the debtor, and of all the creditors, who could have any possible interest in the goods. It was also beneficial to all concerned. These plaintiffs have no cause of complaint. They have lost nothing, not even a possibility of gain. If, however, from any view of the defendant’s [ * 298 ] * conduct, he cannot make out a legal and full justification, he can be liable only for nominal damages .
    
      
      
        Ancient Charters, &c. 51, 192, 367.
    
    
      
       5 Mass. Rep 271, Watson & Al. vs. Todd & Al. —Ibid. 399, Caldwell vs. Eaton. —9 Mass. Rep. 265, Warren vs. Leland.
      
    
    
      
       7 Mass. Rep. 254, Rockwood vs. Allen, Exr. —12 Mass. Rep. 363, Tyler vs Ulmer
      
    
    
      
       7 Mass. Rep. 505, Blake vs. Shaw. —7 Johns. 426.—4 East, 523.-1 Lutw. 587.
    
    
      
       7 Mass. Rep. 123, Bond vs. Ward. —6 Mass. Rep. 166, Penniman vs. Ruggles. —Ibid. 20. Prescott vs. Wright. —Ibid. 244, Pierce vs. Jackson. —9 Mass Rep. 136, Allen vs Holden. —10 Mass Rep. 473.
    
   Parker, C. J.,

delivered the opinion of the Court. The conduct of the officer, although for the advantage of the debtor, and of all the creditors who were eventually interested in the goods attached, was nevertheless contrary to his official duty ; so that he is liable to the plaintiffs’ action. The consent of the debtor, and of the first attaching creditors, would justify him against them. But all the creditors, who had attached, had a legal right to have the goods dis posed of according to law; and to make any other disposition of them was a wrong done to them, for which the law will give an ade1 quote remedy.

Cases often occur, which show the necessity of some legislative provision upon this subject. Perishable goods are often attached ; live stock also, which may consume its value during the pending of a suit. The creditors may thus have their security waste before their eyes, and the debtor may suffer the loss of his property without paying his debts. An authority in all such cases, and also when the market price of merchandise is likely to fall, to sell the property attached, and appropriate the proceeds among all the parties in interest, according to their legal claims, is a desideratum in our law.

But as to the damages to be recovered for this venial departure from official duty, with good intentions, and for the benefit of every one finally interested, and by their consent,—shall the officer be made to pay the whole debt, and the plaintiffs in this case profit to that extent, from their refusal to concur with the other attaching creditors? We think not. They are to recover damages. What are those ? Certainly an indemnity for the injury they have sustained. What is that injury ? It is the neglecting to keep the goods attached, until sold upon execution; and if they had been so kept, the plaintiffs would have gotten literally nothing. To give them their debt now, would be to authorize a speculation upon the [ * 299 ] necessities * of the debtor, and discourage those arrangements which are often so beneficial to him.

It has heretofore been frequently decided that, in actions on the case against officers for negligence, the jury have the subject of damages at their discretion. It is so, when an escape has been suffered ; where insufficient bail has been taken ; and even where there has been a false return, as in the case of Weld vs. Bartlet , in which will be found cited in the margin, all the authorities touching this point. The question of damages in the case before us being referred to the Court, it is adjudged that the plaintiffs recover nom' nal damages, with costs . 
      
       10 Mass. Rep. 470.
     
      
       [This case cannot be sustained in law. The other creditors gained no title to tlie goods against the plaintiff, because the grant, or agreement,' or assent of the debtor and all the attaching creditors, besides the plaintiff, could not make or give such a title, or supply the defect occasioned by omitting to perfect an inchoate title acquired oy the attachment, or give validity thereto. The damages, therefore, were to be esti mated by the value of the goods, unless this exceeded the amount of the judgment recovered in the plaintiffs’ former suit, and if so, then that judgment would be the measure of damages. Vide Whitaker vs. Sumner, 9 Pick. 308.—Ed.]
     