BRIDGE US. WYMAN & AL.

tained. Whereupon the jury returned a verdict for the defendants; and the plaintiff filed his exceptions to the said direction.

The cause was shortly argued at the last June term

* in this county by Williams for the plaintiff, and by [* 195 ] Mellen and Orr for the defendants; and at this term the opinion of the Court was delivered by

PARKER, C. J. We are of opinion that the direction of the judge at the trial was correct, and that the verdict is well maintained by the evidence stated in the report. The attachment made by Webster was sufficient to make him responsible for the property to the attaching creditor; but actual custody or possession was necessary to make it valid against a subsequent attachment.

The delivery over to Coffin appears to have been merely nominal. The debtors were permitted to work upon the ship, and to have the visible possession of her at the time Wyman made his attachment; and Coffin, who was the servant of Webster, gave no notice to Wyman, or to any other person, that he had the custody of the ship.

If it be not necessary, in order to perfect the attachment of a ship, that the attaching officer should place a person on board, to keep possession, and notify others that the vessel is in the custody of the law, it is at least essential that the debtors should not have the management of such property, in the same manner as they would have if no attachment were made, and that some persons should be authorized and required by the attaching officer to give notice, in case a second attachment is attempted.

The effect of these nominal attachments, viz., leaving the property in the hands of the debtor, and taking a receipt of some friend of his, has been frequently adverted to. They are so far valid as to bind the officer for the value of the property, and to give force to the contract between him and the person who gives his receipt for it. But with respect to strangers, other creditors, or purchasers without notice, the attachment is wholly inoperative. Such transactions are always confidential; the sheriff takes his security from the friend of the debtor; and this friend is secured by, or he relies upon, the debtor. They all act at their peril,

* and have it not in their power to effect the security of [*196 ] the attaching creditor, or by such means to withhold the property from other creditors.

Wyman had full right to attach this ship; and although he also permitted her to go to sea, yet the plaintiff has not been injured thereby; for the judgments in those suits have been satisfied. Nor do we perceive that Wyman has broken the condition of his bond in consequence of having had the execution of Phillips & Al. committed to him, and returning it unsatisfied. The ship was 169

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BRIDGE VS. WYMAN & AL.

gone when he received the execution; and it does not appear that he knew of the attachment made by Webster until more than thirty days after the judgment had expired; nor did he know, until then, that Coffin had become responsible to Webster. (a)

Judgment on the verdict.

(a) [Sanderson vs. Edwards, 16 Pick. 144. - Hemenway vs. Wheeler, 14 Pick. 408 - Naylor vs. Dennie, 8 Pick. 198.-Isley vs. Nichols, 12 Pick. 270.- Sawyer vs. Merrill, 6 Pick. 478. Baldwin vs. Jackson, 12 Mass. Rep. 131.- Train vs. Wellington, 12 Mass. Rep. 495. — Merrill vs. Sawyer, 8 Pick. 397. — Carrington vs. Smith, 8 Pick 419.- ED.]

JOHN O. WEBSTER versus NATHANIEL COFFIN.

Where one had received a ship from an officer, who had attached her on mesne process, and had promised to deliver her to the officer on demand, and he afterwards permitted the owner to continue possession, and to carry her to sea, he was holden liable to the officer upon his promise, although no demand was made on him within thirty days after judgment was rendered in the suit on which she had been attached; the officer having been held to answer to the attaching creditor.

THIS action was assumpsit upon the receipt and undertaking of the defendant, which is recited in the report of the preceding case of Bridge vs. Wyman & Al., and was referred to the determination of the Court, upon certain facts agreed and stated by the parties.

The facts stated are substantially contained in the preceding case, viz., the attachment of the ship by the now plaintiff, then a deputy sheriff; his delivery of it to the defendant upon his said receipt, and undertaking to redeliver it on demand; the recovery of judgment and execution by Phillips and others against Noyes; the continuance of the ship in the hands of the former owners until her sailing, in November, 1808, when the said Noyes sailed in her; the situation

of Mr. Coffin's place of business; the delivery of Phil[* 197 ] lips's execution to * Wyman; his return of the same in no part satisfied; and a demand of the ship by Webster of Coffin, September 22, 1812. It is also agreed that the present defendant has paid no part of the judgment recovered by Phillips against Jones; that Phillips has recovered against the sheriff Bridge the sum of 2396 dollars, for the default of himself and his deputies in the discharge of their duty relative to the said action against Jones, and that Bridge has paid the same with additional expenses; that Bridge has brought his actions against Webster and Wyman and their respective sureties for indemnity; that Wyman attached the

WEBSTER Us. COFFIN.

said ship at the several suits of Barker and Clark, as stated in the defendants' rejoinder in the said case of Bridge vs. Wyman & Al.; that he delivered her to one Webb, taking his engagement in writing to deliver the same on demand; that the actions of Barker and Clark were continued in court until long after January, 1809, when Phillips & Al. recovered their judgment against Noyes; that no other demand was ever made upon Coffin for the ship but that before stated; and that Webster had no property therein except by virtue of his attaching her at Phillips's suit, and that he never had any other writ against said Jones and Noyes than that sued by Phillips, as aforesaid.

The cause was argued at the last June term by Williams for the plaintiff, and Orr for the defendant.

Orr contended that this was a void undertaking for want of a consideration. It was said by the Court, in the case of Phillips & Al. vs. Bridge, (1) which arose out of this same transaction, that the object of such an interference is to send the vessel to sea, or, in other words, that the debtor may still have the full use of his property, notwithstanding the right of his creditors to hold it for their security.

The defendant's engagement cannot be construed beyond a promise to indemnify the plaintiff against the rights of the attaching creditor. But those rights wholly ceased after thirty

days from the judgment, the execution not having [198] been before delivered to the plaintiff. (2) It is not unlike the liability of an endorser of a bill of exchange, or promissory note, which ceases to exist after a neglect of due diligence and notice by the holder. The sheriff neglecting to make his demand on the defendant, all his claim was gone. The authority or rights of the bailee to hold the property attached could not be greater than those of the sheriff who had made the bailment under the circumstances of the case.

Williams, for the plaintiff, contended that he was legally entitled to recover the value of the ship, which the defendant had explicitly engaged to keep until demanded by the plaintiff; or, at the least, the sum which the defendant's breach of his undertaking had been the occasion of the plaintiff's losing. The injury the plaintiff has sus tained, in being compelled to pay that sum, furnishes a sufficient consideration for the defendant's promise. It was perfectly immaterial to the defendant whether the execution was delivered to the plaintiff, or to any other officer able to serve it within the thirty days.

(1) 11 Mass. Rep. 242.

(2) 9 Mass. Rep. 258, Knap vs. Sprague.

WEBSTER vs. COFFIN.

In the case of Phillips & Al. vs. Bridge, the Court say that the injury to the plaintiffs there, and of consequence to the present plaintiff, accrued when the ship was restored to the debtors, which was long before judgment was rendered in the suit upon which the attachment was made. The ship being, at the time of the judgment rendered, out of the defendant's control, a demand at that time would have been nugatory. In short, the defendant, acting as the servant of the plaintiff, must be answerable over to him, so far as by his misconduct the plaintiff has been made to suffer. (3)

The action was continued for advisement, and at this term the opinion of the Court was delivered by

PARKER, C. J. The only question which this case presents is, whether Mr. Coffin is exonerated from his express promise in writing

to deliver the ship, which was the subject of the contract [* 199] to Webster, the plaintiff; *no demand having been made on him therefor, until more than thirty days had expired after the judgment, to secure which the attachment was made.

It may be observed that, a demand having been made before the present suit was commenced, the defendant is liable, according to the terms of his contract, and can only be exonerated by showing that the plaintiff himself is not liable to the attaching creditors, and so has lost his right to enforce the contract with Coffin. But the facts agreed show clearly that the plaintiff is liable to the judgment creditors. Indeed, the investigation made by the Court in the case formerly decided between the judgment creditors and Bridge, the sheriff, as well as in the case of the sheriff against Wyman and his sureties, in which judgment has now been rendered, leave no doubt of the liability of Webster to the sheriff. It is enough to make him liable, that the ship was once attached by him, and that she was not in his possession, or within the commonwealth, when the execution was about to be levied; the execution having been sued out, and a demand having been made upon Webster by Wyman, who had possession of the execution, within thirty days.

To what purpose would it have been for Webster to have made a demand upon the defendant, when the ship was actually at sea before judgment was rendered, and this by permission of Coffin, who had the opportunity of seeing the owners of the ship preparing her for sea, and must be presumed to have consented that one of them should depart with her? Had he kept the control of her until the lien of the creditor had ceased, and then had surrendered her, he would have been acquitted, as would Webster also. But

(3) 11 Mass. Rep. 219, Jewett vs. Torrey. — Ibid 211, Whittier vs. Smith & Al.

WEBSTER Vs. COFFIN.

Webster made himself responsible to the creditors absolutely while the legal lien continued, and Coffin's responsibility to him was of equal duration. Having parted with the vessel, or perhaps never having had actual possession of her, a demand of Webster upon him would have been nugatory.

The case of Knap vs. Sprague, which was cited by *the defendant's counsel, in which the receipter of [200] property attached was held not responsible to a con

stable, is altogether different in its merits from this. There the constable was not liable on account of the first attachment, because execution was not sued out within thirty days from the judgment, and the second attachment was void; so that he had no legal or equitable claim to the property.

If Mr. Coffin is not indemnified, we may lament his imprudence; but the law must have its course.

Defendant defaulted.

LUCY KNOX AND OTHERS versus ALEXANDER KELlock.

In a writ of right, wherein the demandants counted upon the seisin of their ancestor, the tenant proved that the ancestor had parted with the land in his lifetime. But it appearing that such ancestor was disseised at the time of his conveyance, and that therefore nothing passed by his deed, and the action being avowed to be brought for the use of the grantees, the demandants recovered.

THIS was a writ of right, in which the demandants counted on the seisin of Francis Waldo, within sixty years from the 31st of December, 1811, being the date of the writ, and a descent to them from him as their ancestor.

The cause was tried on the general issue, before Thatcher, J.. at the last September term in this county, when it was proved, on the part of the demandants, that Samuel Waldo, Esq., died seised of a tract of land called Middle Neck, of which the demanded premises are a part, in the year 1759; that the said Francis Waldo, one of the children and heirs of the said Samuel, in the year 1768, received a conveyance from the other heirs of the said tract, and became seised by virtue of the said conveyance. The pedigree of the demandants, as derived from the said Francis, was admitted as alleged by them in the count.

On the part of the tenant, it was proved that, in the year 1764, John Kellock, father of the tenant, entered and took possession of