HALLOWELL vs. HARWICH. tiffs' right of action is conditional, viz., that it be brought within two years after the accruing of the expense. * 2. Another question is, whether the residue of the sum can be recovered, no notice having been given to the overseers [* 189] of Harwich before the suit brought. And we are clear that it cannot; the notice in the former suit, or the pro ceedings in that suit, having no relation to this, except to conclude the defendants upon the question of settlement. For the reasons before stated, applicable to the other question, the notice should be renewed upon every new cause of action. The purpose and object of the notice is to give the town called upon the election of taking the pauper home, and supporting him within their own town. Now, the proceedings in the former suit cannot inform them that the person is still a pauper; or that he has not acquired a settlement in some other town, which may be done in several of the ways provided in the statute, in less time than elapsed between the commencement of this and the former suit. The notice to the overseers of the town sued is a sine qua non of the action. The plaintiffs, then, cannot have judgment on the facts before us; but as it has been suggested that it may be in their power, on another trial, to prove the requisite notice to the defendants, a new trial is to be had for that purpose, according to the agreement of the parties. (a) 164 (a) [Belfast vs. Leominster, 1 Pick. 123.-ED.] CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, FOR THE COUNTY OF LINCOLN, JUNE TERM, 1817, On the attachment of personal property on mesne process, it is necessary that such possession thereof be retained by the officer as shall make the attachment notorious; or the attachment will be vacated, as respects future attaching creditors, or purchasers without notice. THIS was an action of debt upon a bond given to the plaintiff, when sheriff of the county of Lincoln, conditioned to indemnify him against the misfeasances and nonfeasances of the defendant Wyman, whom the plaintiff had constituted his deputy in the said office of sheriff. After oyer had of the bond and the condition, the defendants plead in bar that the said Wyman omnia performavit, &c. The plaintiff replies, that, on the 19th of April, 1808, Jonathan Phillips and others sued out a writ of attachment against one Enoch Jones, returnable on the second Monday of May then next, command BRIDGE OS. WYMAN & AL. ing the said sheriff, or his deputy, to attach the property of the said Jones to the value of 2000 dollars; which writ was on [*191] the same * day delivered to John O. Webster, another of the plaintiff's deputies, who, on the 20th of said April, attached a new ship, of the value of 5000 dollars, as the property of Jones, and made due return of the writ. The said Phillips and others having, in January, 1809, recovered judgment in their said suit for 1733 dollars, sued out their execution thereon. On the Teth of October, 1808, one Abraham Barker sued out his writ of attachment against the said Enoch Jones and one Josiah Noyes, returnable on the second Monday of January then next, commanding the said sheriff, or his deputy, to attach the property of the said Jones and Noyes, to the value of 500 dollars; which writ was on the same day delivered to the defendant Wyman, who attached the same ship as the property of the said Jones and Noyes, and made due return of the writ. The said Barker, in August, 1809, recovered judgment in his said suit for 444 dollars. The said Phillips and others, on the 23d of January, 1809, and within thirty days from the rendition of their said judgment, delivered their said execution against Jones to the defendant Wyman, then a deputy sheriff, as aforesaid, directing him to levy the same on the said ship, or any other personal property of the said Jones, if he could find any, and to sell it according to the command in the execution; or to demand the said ship of the person who had receipted for her to the said Webster; or, in case Webster should apply to Wyman for the execution, to deliver the same over to him. And the said Wyman received the said execution, and well knew the attachment, which had been made by Webster, of the said ship, and in whose custody Webster had placed it for safe keeping; and ought to have taken the same in execution, or to have demanded it of the person who had it in custody, or to have permitted Webster, on his application, to have taken the execution, that he might have taken the ship in execution, or have demanded it of the person having it in custody, so as to charge him with the value thereof in case of non-delivery thereof on demand But the said Wyman, regardless [* 192] of his duty, did not levy the execution on the said * ship, nor demand it of the person in whose custody it was; and although Webster requested of him the execution, for the purpose of levying it upon the ship, and of demanding it of the person having the custody of it, he refused to permit Webster to have the execution, whereby he was deprived of an opportunity of levying it upon the ship, or obtaining the same of the person to whose custody he had committed it; and Wyman afterwards returned the said execution unsatisfied, by reason whereof the plaintiff became BRIDGE US. WYMAN & AL. iable, and has been compelled to pay to the said Phillips and others the whole amount of their judgment, and to expend large sums of money in the defence of their action against him for the recovery thereof, amounting to 3000 dollars. And this, &c., wherefore, &c. The defendants, in their rejoinder, allege that Webster, immediately after he had attached the said ship, as stated in the replication, voluntarily permitted the same to be taken out of his custody and safe keeping, and to be returned to and remain in the hands and possession of the said Jones and Noyes, who were joint owners thereof, until the said 18th of October, when Wyman attached it at the suit of said Barker, as the property of the said Jones and Noyes; and also, on the 19th of the same October, further attached the same by virtue of another writ of attachment in his hands, sued by one George Clark against the said Jones and Noyes, returnable on the second Tuesday of September then next, whereby the sheriff, or his deputy, were commanded to attach their property to the value of 4000 dollars; which last writ was duly returned; and in that suit, in May, 1812, judgment was rendered in favor of said Clark against the said Noyes, surviving partner of the said Jones, who had deceased pending said suit, for the sum of 1069 dollars; which said ship was all the goods and estate of the said Jones and Noyes of any kind which came to the knowledge of the said Wyman, or could by him be found within the precinct of the sheriff, while the execution aforesaid remained in his hands. And this, &c., wherefore, &c. *The plaintiff, in his surrejoinder, alleges that Web- [ * 193 ] ster, after making the attachment set forth in his replica tion, did place and deposit the same ship in the care and custody of Nathaniel Coffin, Esq., for safe keeping; and the said Coffin thereupon, by his memorandum in writing, promised the said Webster, deputy sheriff as aforesaid, that he would safely keep the same, and deliver it to Webster on demand; and the said Coffin did accordingly keep said ship for Webster, until Wyman attached it, as alleged in the plaintiff's replication; and traverses the allegation of the defendants, that Webster voluntarily permitted the ship to be taken out of his custody, and to be returned to the said Jones and Noyes, &c., and concludes with a verification. The defendants, in their rebutter, aver that Webster voluntarily permitted the ship to be taken out of his custody, and to be re turned to Jones and Noyes, &c., and tender an issue to the country which is joined by the plaintiff. In the trial of this issue before Thatcher, J., September term, 1815, the defendants, to maintain the issue on their part, proved that, from the time that Webster attached the ship, the said Jones and BRIDGE vs. WYMAN & AL. Noyes continued to work on the ship at their wharf as before the attachment, to complete her lading, and to fit her for sea, until Wyman attached her; and after that attachment they still continued the same operations, and chartered her to certain merchants, and In the latter part of November in the same year, the ship sailed from said wharf, and had never returned. The plaintiff, to maintain the issue on his part, proved that, when Webster made the attachment, the ship was partly laden and not rigged, -- that, on the same day, he delivered her to N. Coffin, Esq., for safe keeping, and took from him the following writing, viz.: Lincoln, ss. Bath, April 20, 1808. Received of Mr. John O. Webster, a deputy sheriff for said county, the new ship, tackle, and 66 apparel, belonging to Jones and Noyes, as she now lies at [*194] their wharf, for safe keeping, she being attached by said Webster as their property, on a suit against them in favor of Jonathan Phillips and others, returnable at the next May term of the Court of Common Pleas in this county, for the sum of 2000 dollars; and I promise to return her to him again on demand, or pay the amount of the execution recovered on said demand. Nathaniel Coffin." The said Coffin transacted his business on the same wharf: his office was in sight of and near said ship, and he in daily observation of her. The ship remained in the same place from the time of Webster's attachment until those made by Wyman. All that was done upon her by Jones and Noyes, after Webster's attachment, was beneficial to the ship, and rendered her of greater value than when attached. There was no proof that Wyman had any knowledge of the attachment made by Webster, until after he, Wyman, had attached her; nor that Webster requested Wyman to deliver him the said execution, until after the expiration of thirty days from the rendition of Phillips's judgment against Jones. And it appeared that the two debts, to secure which Wyman attached the ship, were caused by him to be satisfied on execution. Upon this evidence, the plaintiff insisted that the attachment so made by Webster was valid and effectual; that the delivery of the ship to Coffin, as aforesaid, and her situation afterwards, until Wyman attached her, was not voluntarily returning her to Jones and Noyes; and that he had maintained the issue on his part. But the judge instructed the jury that Webster's attachment, by the subsequent disposition of the ship, and the acts of said Jones and Noyes, as proved as aforesaid, was abandoned and discharged, and that the issue, on the part of the defendants, was well main |