1. It having been decided in May v. Hastings, in Orleans county, on the last circuit, that an officer who attaches property, by leaving a copy in the town clerk’s office, is liable to a suit of replevin, brought by some person, other than the debtor, it would seem to follow, that trespass and trover will lie. For replevin will only lie where the property is unjustly detained, *374which the officer could not be said to do, unless he had taken the property. It has long been settled, that as to the debtor, this mode of attachment effectually divests Mm of all possession, so that he cannot sue even a stranger who intermeddles. And we think the officer is estopped from denying the taking, as to all others who show title to the property.
2. But it is said there was no direct evidence that the defendant made the attachment, and it is not stated what evidence upon this point, was given, or that any was given, unless it is to be inferred that some was given, from it being stated that no direct evidence was given, and from the fact, that the jury were directed to consider the custom or usage of giving executions to the same officer making the attachment, we must conclude the evidence was very slight, if indeed any other existed. But as the jury were told to consider this usage as evidence, tending to show the defendant made the attachment, and if so, they might have determined the case upon this evidence alone, it is important that we should be able to say this is competent evidence for that purpose.
It appears to us, that there is no such uniformity in this custom or usage, that it can be regarded as evidence, to show a particular and substantial fact. The custom of giving oat executions within thirty days after judgment, is far more uniform, than the one alluded to, and we suppose that no one ever relied upon that kind of evidence, to charge property in execution. A witness, who gave out an execution, might rely upon his habit of giving them out in thirty days, and that if he had not in the particular instance, it would have made an impression upon his mind, to enable him, to say he did give it out in thirty days, but the jury could not with propriety, be allowed to consider this usage as showing the main fact. It is common to attach property to satisfy the judgment, but that of itself would scarcely be sufficient to show an attachment in a particular case. The truth is, this evidence is - defective in two particulars. First, it rests upon no settled and reliable uniformity upon which the jury could safely be allowed to act. Second, it presupposes the existence of other evidence, and in the power of the party, which not being produced, ordinarily raises a presumption against the party, that if produced, it would operate against him.
Judgment reversed and case remanded.