The opinion of the court was delivered by
Poland, Ch. J.The single question presented by the exceptions in this case is, whether the defendant’s promise is supported by a valid consideration.
1st. Was the defendant legally liable for the payment of the interest upon the note at the time the plaintiff surrendered the note ; could the plaintiff have expected payment to that extent by a suit upon the note ?
The statute provides that when attached property is sold by the attaching officer upon the writ, and before judgment, either by consent of the parties or by compulsory proceedings, “ the proceeds of the sale shall be held by the officer subject to the attachment or attachments, and shall be disposed of in like manner as the property *72would have been held and disposed of if it had remained unsold.” If on such sale the officer take notes payable with interest, or if he loan the money and take obligations therefor with interest, no doubt can be entertained but that he is entitled to collect the interest as well as the principal. But the question is whether he is entitled to this interest for himself, to put in his own pocket, or whether such increase upon the price of the property belongs to the party who may ultimately be found entitled to the property, or its proceeds. The proceeds of the sale take the place of the property, and the custody of the officer of the proceeds is just as much official and the custody of the law, as that of the property before the sale. No one would doubt that if there were additions or accretions to the property itself while in his hands, the ownership and right to them, and the officer’s duty in respect to them, would be the same as to the property itself. If a flock of sheep while in the hands of an officer under an attachment should produce lambs, or wool, it could not well be maintained that such addition to the property belonged to the officer. Nor has the officer any right, by any use of the attached property, to realize a benefit to himself.
It seems to us that by analogy, and upon principle, that when the property thus becomes, by process of law, changed into money in the officer’s hands, he has no more right to put it to use for his own personal benefit, than he had the property itself. His custody of it, and his duty over it, are strictly official, and he has no more personal interest in, or right to, the proceeds than he had to the property itself. It is said that the officer in such case is under no obligation to take notes for the property sold, he may exact the money ; that when he has obtained the money, he is under no obligation to so place it that it may draw interest, and that if he does loan it, he does so at his own peril to account for it, if thereby it becomes lost, and that therefore as he incurs all the risk and responsibility by taking notes for it, he should receive all the advantages which accrue from it by way of interest. But it does not seem to us that this conclusion follows. The officer in such case undoubtedly is under no obligation to do more than to safely keep the money, he is not bound to incur any hazard or risk of its loss in order that the debtor or creditor may not suffer by the money’s being idle and unproductive. On the *73other hand he has no right to incur any hazard or risk of its loss, for his own benefit, while thus in his hands under his official trusteeship, and if he does so place it that it produces interest, such interest should be treated as an accretion to the money and belongs to the party entitled to the money. In such case the officer may always free himself from responsibility by obtaining the consent of the parties to putting the money at interest, and if they will not consent, he is not in fault that the money produces nothing.
It is contrary to the whole spirit and policy of the law to allow one holding funds in a public official character, in which he has no personal right or interest himself, to use such funds for his own personal profit and emolument. The plaintiff therefore was not entitled to this interest for himself, but only in virtue of his right to recover (it for the benefit of the creditor or debtor under the attachment.
The suit in which the property was attached was settled, the creditor was satisfied, and had directed the plaintiff to surrender to the defendant Skinner all the property and securities in his hands derived from the attachment. The defendant Collamer acted as the friend and agent of Skinner in the whple transaction, and for his benefit, and the case stands just as it would if the plaintiff had taken Skinner’s note for the property, and the defendant Collamer had-been a surety upon it. Under the settlement, the defendant and Skinner were entitled to have the note which represented the attached property surrendered to them without payment, for if they paid it to the plaintiff they would be entitled to the money from him. It comes to this then, is Skinner under obligation to pay interest on his own money to the plaintiff, who never had any personal interest in the property or note whatever ? The manifest wrong and injustice of such a conclusion is a sufficient answer to the proposition; it cannot be the law.
2d. If the plaintiff had no personal interest in, and no legal right to collect the interest upon the note, was there any consideration growing out of the surrender of the note by the plaintiff, and the defendant’s written agreement or promise to pay the interest, which will support the promise. The plaintiff did not claim any right to the principal of the note, hp only claimed that the interest belonged} *74to him. He held the defendant’s written promise to pay it. He surrendered that and took another written promise to do the same thing. It is difficult to see how, if the first did not bind the defendant, the second one could.
It is claimed to be analogous to the cases where it has been held that a settlement and compromise of a disputed, and doubtful claim, is a consideration for a promise made upon such settlement, and as a part of it. But there seems to have been no dispute, and no compromise. The plaintiff claimed the interest belonged to him, as he had run the risk and incurred responsibility by taking the note instead of requiring the money at the time. The defendant appears to have immediately assented to this claim of the plaintiff, though he expected it would be paid by the creditor under the terms of the settlement, instead of by him or by Skinner. The defendant’s assent appears to have been rather an acquiescence in the plaintiff’s view of the law, than of any thing else, and as he supposed it was a claim for the creditor to meet and fulfill. There was no dispute betwfeen the parties; no threat or expectation of litigation. The plaintiff surrendered nothing he claimed any right to hold; there was no compromise, no abatement of any part or portion of what the plaintiff claimed to belong to him. He surrendered one written promise to pay a certain amount, for another to pay the same sum. The transaction lacks all the elements of a consideration founded on the settlement and compromise of a disputed claim. But the plaintiff claims that his trouble in taking the note, the risk and responsibility he incurred thereby, some correspondence he had with the defendant about the note, and his going to White River Junction to meet the defendant and make this arrangement, were a sufficient consideration to support this promise to pay the interest. It would be enough to say' as to this that if any or all these matters might have been a sufficient consideration for the promise, none of them were so in fact; the promise was given wholly upon the ground that the plaintiff claimed he was legally entitled to the interest, and upon the defendant’s supposition that he was so entitled, and the promise was coextensive with that consideration. None of these matters were suggested at the time, as any reason or consideration for the defendant’s promise, and if the plaintiff had any just *75ground of claim against the defendant, they remain in full force to this time.
We are all of opinion that the defendant’s promise was supported by no sufficient consideration, and that the plaintiff cannot recover thereon.
Judgment reversed and judgment for the defendant.