The opinion of the Court was drawn up by
Parker C. J.The contest in this action is between a deputy of the sheriff of the county of Suffolk, who, acting under a lawful precept under the authority of the commonwealth, attached the goods, to respond a debt due from the owners, and the marshal of the United States, who, acting under a precept of the District Court, seventeen days afterwards attached the same goods on behalf of the United States, to secure debts due to them from the owners of the goods, arising from duties on goods formerly imported by them. If the creditor on whose behalf the plaintiff acted, has equai rights with the United States, in regard to obtaining security for his debts, then the case is clearly with the plaintiff, on account of his priority in the attachment.
But it is contended by the district-attorney, that the attach' *123ment of the United States should have preference, because they have a lien upon the goods of their debtors, whenever imported, for all debts due at the customhouse, notwithstanding such goods may have been purchased and imported long after the debt accrued and became payable ; and that the debts due from the importers of these goods, for duties on goods previously imported and secured by bond, exceeded in amount the whole value of the goods which are the subject of this action, so that there was nothing left to be attached by the plaintiff on his writ, and therefore that he cannot maintain this action. The consequences of this claim on the part of the United States are so extensive, and, we fear, so mischievous to the commercial part of the community, that we cannot yield to it, unless we find some express provision in the laws of the United States which gives it sanction. It appears to us, that if it shall be finally established and enforced, it will go far to put an end to all commercial credit, and have a very serious effect on commerce itself. No such claim, we think, has ever before been set up, notwithstanding the statute on which it is said to rest has been in force nearly thirty years, and during that time innumerable attachments have been made by private citizens on goods imported by their debtors, who at the same time have been indebted to the United States.1 The lien of the government upon the goods for the duties with which they are chargeable, has always been admitted, and the duties have either been paid or secured, or the goods placed in the public stores, until the public has been satisfied. The proceedings in the present case were probably according to a custom of long standing in regard to goods so situated. It not being possible to remove the lien at the time of the attachment, because the duties were not ascertained, they were deposited by the attaching officer in the store of the customhouse, under the following official certificate, — District of Boston, &c. [as before recited.] By this transaction Scott became the bailee of the goods for the plaintiff, bound to deliver them to him on payment or security for the duties and charges ; and this must be presumed to have been with the consent of the United States, for Scott is under the control and acts under the orders of the collector of the district; and the consent of the United States, that the attachment should hold notwithstanding their lien was not removed by payment of the duties, must be presumed from the agreement of their officer to hold the goods subject to the order of the deputy sheriff, the plaintiff. And this we are authorized to say is the usual mode of conducting, in regard to goods attached which are subject to duties ; as appears from a certificate of the collector to that effect, viz. “ That goods attached previous to the duties being secured, are taken into the customhouse store, and there detained until the duties are paid or secured.”
Indeed there is no other way of preserving the rights of creditors and of the United States at the same time ; Ur the lien being uncertain as to its amount, the duties cannot be paid until entry is made and the cost or value of the goods ascertained. When the marshal took the goods by attachment, they were lawfully in the custody and possession of the plaintiff, and therefore the taking was a trespass ; so that between the plaintiff and defendant there can be no question in the present action ; for the defendant is acting for a creditor who stands upon the same footing with other creditors, and must yield to those who have obtained the priority. The question whether these goods were attachable or not, does not present itself in the case before us ; for they were in the possession of the plaintiff claiming to hold them by virtue of an attachment. The more general question should be tried between the United States and the attaching officer, in a dif ferent form.1
See Conrad v. Atlantic Ins. Co. 1 Peters, 386; Harris v. Bennie, 3 Peters, 292; Hodges v. Harris, 6 Pick. 360; Dennie v. Harr's, 9 Pick. 364.
This decision has been reversed in the Supreme Court of the United States, where it was held, that the attachment made by the State officer, of the goods mentioned in the above case, was an interference with the right of lien upon and custody of the same existing in the United States, and that the attachment, being repugnant to the laws of the United States, was void Harris v. Dennie, 3 Peters, 292. See also Dennie v. Harris, 9 Pick. 364.