Russell and the plaintiff were copartners in trade in a country store. Flanders, a deputy sheriff, having a writ against Russell, attached his interest in the partnership property, took possession of the store, and made the plaintiff his keeper. The defendant, another deputy sheriff, against the plaintiff's objection and with knowledge of what Flanders had done, with Russell's consent who opened the store, attached or undertook to attach the same goods, paying no attention to Flanders's attachment, and putting in a keeper of his own. Subsequently, the defendant surrendered possession of the store and stock of goods, and Flanders, by consent of Russell's creditors, sold the goods.
By Flanders's attachment of the goods on a writ against Russell, Russell was excluded from the possession. When the goods were attached, the plaintiff, who was joint owner of the goods with Russell, by becoming the sheriff's keeper, surrendered his possession as owner, and had possession of the store and goods as the sheriff's keeper. He was bailee of the officer making the attachment, and as such might maintain trespass against any one who interfered with or disturbed his possession. Poole v. Symonds,1 N.H. 289; Hartford v. Jackson, 11 N.H. 145, 147. The plaintiff, having surrendered his possession of the goods as owner, that an attachment might be made, the attachment gave Flanders a valid lien on the goods to the extent of Russell's interest, and a second attachment could not be made by another officer while the goods were in the possession of Flanders or the plaintiff as his keeper. Odiorne v. Colley, 2 N.H. 70; Sinclair v. Tarbox,2 N.H. 135. Russell, being excluded from the possession by the first attachment, could not, by any act or consent of his, let in the defendant so that a valid attachment could be made by him. Even if the property had come back to the hands of the debtor, Russell, there being no design to relinquish the first attachment, the defendant, having knowledge of a subsisting attachment, could acquire no rights by a seizure of the goods against the first attachment. Young v. Walker, 12 N.H. 502, 507. Carpenter v. Cummings, 40 N.H. 158, 171; Houston v. Blake, 43 N.H. 115, 117; Cooper v. Newman, 45 N.H. 339, 342. The plaintiff, being in possession of the property as keeper of an officer having a valid attachment, is entitled to a recovery against the defendant for the disturbance of that possession.
The plaintiff cannot recover damage as owner of the goods. *Page 29 Having, as owner, consented to the first attachment, any damage to him by reason of the disturbance of the business and loss of trade cannot be recovered; and the goods and possession of the store being returned to him by the defendant, no special damage to him, as keeper, is shown. On the facts reported, the plaintiff can recover only nominal damages.
Judgment on the report for nominal damages.
STANLEY, J., did not sit: the others concurred.