The opinion of the Court w'as drawn up by
Whitman C. J.This case comes before us upon exceptions taken to the instructions given to the jury at the trial. . Attachments upon mesne process are unknown to the common law ; and depend upon statutory provision. Hence we cannot look abroad for precedents to guide us in ascertaining what may be the duties of officers in such cases. By our process of attachment the officer serving a writ, vvhen so ordered, is bound to attach sufficient to secure the payment of what may finally be recovered; provided, property belonging to the debtor can be found to such an amount. He is clearly bound to attach none but such as does belong to him. But personal property, found in the possession of the debtor, may be presumed to be his, if nothing appears to the contrary. If an officer omits to attach property so situated, when necessary for the creditor’s security, he will be responsible to him for the injury sustained from such an omission ; unless he can prove, that, notwithstanding such appearances, the property was not in fact that of the debtor; and the burthen of proof will be upon the officer to establish such fact. And, if he clearly shows such to have been .the fact, he will have done right in *305not having attached it, as in attaching it he would have been guilty of a trespass.
To ascertain who is the actual owner of personal property, notwithstanding what may be the indication arising from acts of ownership, is often attended with difficulty. Officers ought not to be holden to proceed to make attachments, where there is imminent peril in so doing, without an indemnity. If there be the external indicia of ownership the officer cannot be excused from making an attachment, when necessary to the security of the creditor, by any thing but eventual proof that the property did not belong to the" debtor ; or in case of reasonable grounds of suspicion, by a refusal of the debtor to furnish security for an indemnity. In the present case the property of the debtor was, so far as it could have appeared to the defendant, the property of the debtor. The defendant, if he would be excused for not attaching it, should prove either, that the property was not in fact in the debtor, or that, upon exhibition to the creditor of well grounded suspicions’of danger, to be apprehended from making the attachment, he refused an indemnity. The instructions to the jury not having been substantially to this effect, the exceptions are sustained, and a new trial granted.