The present and two other actions against the sheriff of Suffolk [post. 149] arise out of a contest between the creditors of George W. Bartlett as to the right to the proceeds of certain goods, which were originally the property of said Bartlett, and which were sold by Charles D. Coolidge, one of the deputies of the sheriff. The plaintiffs in this case are assignees of said Bartlett, appointed under St. 1838, c. 163, and the parties in the other suits are James Bartlett and John T. Bartlett, the judgment creditors of the said George W. Bartlett; and to one or the other of these parties the sheriff is responsible. Various questions have been presented to the court, in the argument of these cases ; the most important of which will be noticed in stating the opinion which the court has formed.
The cases in winch the petition of the creditor of an insolvent is the ground of a warrant to take possession of his estate are 1st, where the debtor has been arrested on mesne process in a civil action for the sum of $ 100 or upwards, on a demand proveable under the act, and he shall not give bail before the return day of the process ; 2d. where actually imprisoned, in a like case, on mesne process or execution, more than thirty *144days ; or 3d. where his goods or estate are attached on mesne process in any civil action as aforesaid, and he shall not, on or before the last day of the term of the court to which such process is returnable, dissolve the attachment in the manner provided in the act. St. 1838, c. 163, § 19.
The present case ranges under the third branch of the statute; and the plaintiff must, therefore, show that the goods attached on the 3d of December 1839, at the suit of the Bartletts, remained the property of the insolvent at the time of the issuing of the commission, and in a conditon, at the first publication of the messenger, to pass under the assignment.
It was attempted, during the pendency of the actions in the common pleas, to impeach the validity of the demand upon which the action of James Bartlett was founded ; but as the attempt failed, it is not necessary to examine into that part of the case. Indeed the point was not relied on at the hearing of the cause. But it was contended that the return of the sheriff on the original writ, upon which the goods were attached, was defective, because there was no return of the sale of the goods at auction, and therefore no legal proof of their sale. On looking at the statute permitting a sale of goods attached on mesne process, we are satisfied that such a return of the sale is not absolutely essential to its validity, nor required, at all events, to preserve the attachment. The provision of the Rev. Sts. c. 90, § 57, is this : “ When any personal property is attached, whether on one or more writs, and the debtor and all the attaching creditors shall consent in writing to the sale thereof, the attaching officer shall sell the same, in the manner prescribed by law for selling the like property on execution ; and the proceeds of the sale, after deducting the necessary charges thereof, shall be held by the officer, subject to the attachment or attachments, and shall be disposed of in like manner as "the property would have been held and disposed of, if it had remained unsold.” And in St. 1832, c. 93, § 1, of which the foregoing § 57 of c. 90, is a revision, we find the language a little more full, while there is no material change in the law. That section provides “ that whenever any personal property shall be attached on *145mesne process, on one or more writs, and the respective parties shall express their consent in writing, that the same may be sold, at any time before judgment, it shall be the duty of the attaching officer to cause the same to be sold in manner provided by law for the sale of similar property on execution.” It is very clear that the legislature contemplated a sale as well after the return of the writ as before, and at any time before final judgment : It is obvious, then, that a sale made after the return day could not be a part of the return upon the original writ; and no provision being made for its being indorsed on the writ, if the sale should happen to be made, as in this case, before the return day of the writ, we must hold that such return is not essential to the validity of the sale, however discreet it might be in the officer to make a return thereof. The law requires that the sale shall be in like manner as if sold on execution, but not that there shall be a return in like manner ; nor is there any express provision for a return of the particulars on the execution. It may have been considered that as the consent of all the attaching creditors, and of the debtor himself, was required before a sale could take place, they would generally watch over their respective interests, both as to the manner of the sale and the charges attending it. But however that may be, no such return being specifically required, the return is not defective on that account, although it would be always wise for the officer to set forth his doings in his return on the original writ, if the sale is made before the return day ; and where such a sale takes place after the return of the writ, and the suit proceeds to judgment and execution, then we apprehend it will be his duty to make a detailed return of his doings upon the execution, for his owr. safety, and for the protection of the rights of all parties. Baxter v. Rice, 21 Pick. 199.
Again, it is said that the sale in the present case was illegal, because all the attaching creditors did not consent thereto in writing. Such an objection comes with an ill grace from the plaintiffs, as it appeared that Upham & Eastman desired the sheriff not to stop the sale, (as he offered to do, if they wished,) but only to retain the proceeds. But we are of opinion, that *146within the meaning of the statute, all the attaching creditors, and the debtor, did assent to the sale. The attachments took place on the 3d of December, and two days after, all the then attaching creditors and the debtor agreed, in writing, to the sale, and requested the officer to make it. This he complied with by pursuing the requisitions of the law in regard to such sales ; and on the day of the sale, the attachments of Upham & Eastman, and others, were made ; and as they entered no protest against the officer’s proceeding with the sale, though the fact "was known to them, we think they cannot now be permitted to allege that the sale was not made with the consent of all the attaching creditors.
But a more serious objection is made against the right of the judgment creditors to defeat the claims of the plaintiffs under their assignment. It is alleged by the present plaintiffs, that there has been no such levy on the property of the insolvent debtor, as dissolved the attachment or prevented its passing un der the assignment; and this objection is argued with much force. The course of the argument is this; that no act of the officer appears, by which it can be shown that he has made any levy on account of any of the executions, or any application of the funds to either execution ; that he has made no election to which of the judgment creditors he would appropriate the money; that he has indorsed nothing on either of the executions ; that at the time of the notice to him of the assignment, he had no intention of making any appropriation of it; that a levy cannot exist simply by operation of law, where the officer did not intend to levy ; and that the mere fact of the officer’s having the money in his hands, and a delivery to him of the execution on which the property was attached, even though a demand is made upon him for payment of the money, does not constitute a levy of the execution.
It is certainly true, that to constitute a levy on the part of an officer, he must act in the premises. It is not enough for him to see the goods. To enable him to make sale of them, and apply the proceeds to the satisfaction of the writ of execution in his hands, he must take such possession of them, if they are *147capable of possession, as would make him a trespasser, if he were acting without authority, and vest in him a special property. Haggerty v. Wilber, 16 Johns. 288. Beekman v. Lansing, 3 Wend. 450. Lane v. Jackson, 5 Mass. 157. Cald well v. Eaton, 5 Mass. 404.
The reasoning of the plaintiffs’ counsel would be satisfactory, and perhaps conclusive, if the goods had not been previously sold by consent of parties, under the statute authorizing the same ; but here the great difference exists, as clearly shown by the able argument of the defendant’s counsel. What was the officer to do, having in his hands the money arising from the sale of the goods, when the writ of execution was given to him ? To make sale of the money would be an absurdity. Sheldon v. Root, 16 Pick. 569. To advertise for four days, that he had the money, would benefit no party. All he could do would be to pay over the amount to the judgment creditor, when the money was demanded, and at the return day return his execution to the clerk’s office. The sale of the goods by him was a levy, permitted by law, in anticipation; and the delivery of the writ of execution to him by the judgment creditor, with a direction to satisfy it out of the moneys in his hands arising from the sale of the goods, constituted, in our opinion, all the levy which the law, under the peculiar circumstances of the property, required, or which could in fact be made ; and the right of the judgment creditor to a payment of the money, after demand made, became perfected in him, and could not be defeated by any subsequent insolvency of the judgment debtor, although the sheriff had made no actual return or indorsement on the writ of execution, prior to such act of insolvency. The rights of parties do not generally depend upon the hour when an-officer makes up his formal return, but upon the acts which he has done, or is contemplated in law to have done. In the present case, the attorneys of the judgment creditors delivered the writs of execution to the officer on the 15th of January, and on the 25th they made a formal demand of payment, in writing, and again on the 5th day of February. But the officer declined paying over the money, orobably because of the pendency of the peti*148tion to have the attachments of the Bartletts dissolved, and their executions superseded. This petition was heard and dismissed on the 14th of February, of which fact the officer had notice; and on the next day he addressed a note to the attorneys, stating that Judge Warren’s opinion settled the question, and he would make up the accounts and balance the same. What more was necessary to be done ? The right of the judg ment creditor to maintain his action upon the non-payment of the money was established before a return of the writ of execution, and thus all property in the judgment debtor was completely terminated. Rogers v. Sumner, 16 Pick. 391. New Hampshire Savings Bank v. Varnum, 1 Met. 37. Wilder v. Bailey, 3 Mass. 294. And as he was in possession of the auctioneers’ account of sales, settled on the 14th of December, and he had made up the expenses to. the time of the sale, and had entered the same on the writ of James Bartlett, he had merely to cast up his fees of levy, and apportion the amount of the balance on the two executions.
But the counsel for the plaintiffs further contend, that supposing the objection to the want of a sufficient levy on the execution of the judgment creditors to be overruled, still the plaintiffs ought to prevail, because the judgments rendered in their actions were frauds upon Si. 1838, “ for the relief of insolvent debtors, and for the more equal distribution of their effects ; ” and that the proceedings were for the very purpose of preventing the creditors at large from having their just share of the debtor’s property The fraud upon the law, which is complained of, is this ; that prior to the last day of the term to which the writ was returnable, to wit on the second day of the term, the defendant confessed a judgment in the suits of the Bartletts against him, and suffered them immediately, that is, in twenty-four hours after, to sue out their writs of execution against him ; whereas the statute contemplated that unless an attachment was dissolved by giving security agreeably to the provision of the 20th sec tion, the creditors of the insolvent might petition and procure the assignment of his effects, and thus dissolve the attachment. It is not necessary in this case to determine what would have *149been the decision of the court, if the creditors had petitioned the master within the twenty-four hours after the rendition of such judgment; but it is sufficient for the determination of this case, to say that no application was made to the -master until two days after the rising of the court, which took place on the 15th of February, and after the rights of the judgment creditors were perfected. This, we are aware, would not be a sufficient answer, if the judgments were, in the language of the counsel, a fraud upon the statute, and a wrongful evasion of it, prejudicial to the just rights of creditors. But we know of no rule of law which prohibits a debtor to confess his debt, when sued, or of being defaulted at an early stage of the term for want of an appearance; and certainly, prior to St. 1841, c. 124, if by so doing he thus preferred a favored creditor, it was not a fraud upon the statute, but one of the privileges of a debtor; a relic of the old system of preferences then remaining, which was so long allowed in this Commonwealth, and which is not entirely abolished. And it may be therefore said that the debtor had power to use this privilege, rather from a defect in the statute, than from practising a fraud upon it.
Plaintiffs nonsuit