delivered the opinion of the Court.
The justice of this case is so evidently with the defendant upon the finding of the jury and the report of the Judge, that, unless some principle of law clearly forbids it, we feel disposed to confirm the verdict.
It is perfectly plain that an officer, who attaches personal property on mesne process, is bound to keep it safely in possession or under his control; and that he is answerable for the property, in case of loss by his omitting to take proper care of it. — This is the law where neither of the parties consents to any particular disposition of it.
If the plaintiff consents to any such particular arrangement or disposition, he cannot afterwards object to it or claim damages of the sheriff on account of it. — So if such disposition be made by the consent of the defendant and for his accommodation, he ought not to complain of the consequences of it.— In some instances an arrangement is made by consent of both parties and the.Sheriff; as incase ot attachment of personal property, where it is agreed by all concerned that the property shall be sold by the officer before judgment. — In such a case the officer is justified in carrying the agreement of the parties into effect. — In the case at bar the goods attached were, at the request, and for the accommodation of Twombly, left in his possession, under the accountable receipt of Johnson ; and were after*225tvards, by a general arrangement among all concerned, placed in the care and custody of Hussey, who was appointed by the officer as his agent to take care of the property; Tzoombly agreeing that the services of Hussey, thus appointed, should be no expense tó Gay or the officer; but should be a charge upon himself.— The note for $175 was given by Tzoopfly to Hussey for a part of the goods which he had sold by Hussey’s permission ; and all the residue of the goods attached, or their proceeds, have been accounted for, and have gone to the úse and benefit of Tzoombly ; and the question is whether the above sum of $175 has not also been so applied! — A payment of that sum to Hussey was in law a payment to the officer, his principal. — As the officer appointed Hussey, he was bound to pay him ; and Tzoombly engaged to indemnify him by' furnishing the funds for the purpose. — The officer then, haying their funds to the amount of $175 in his hands, instead of paying them over to Tzoombly and then recovering them back again upon Tzoombly’s agreement to pay them, retains them for his own indemnity and the payment of Hussey’s wages. And why should he not be permitted so tó do ? It is true, that in an action of assumpsit the $175 note could not be offset against the plaintiff; — but in the present action, wherein the officer is charged with having lost and wasted the goods, we are well satisfied that it is competent' for the defendant to excuse himself from liability, by shewing that he has applied that amount to the use and benefit of Tzuombly, by paying Hussey’s wages with it, according to his express agreement, for services in guarding the property Where it was left for Twombly’s accommodation; — unless the taxation of the g30 by the Court .is to be considered as a final adjustment of all claim on Tzoombly, beyond that sum, on account of Hussey’s ■wages. — We do not consider this taxation as affecting the question. — The sum thus taxed, Gay Was authorised to recover — it ■was a direct Hen on the goods ; and the Court would have had just the same power tó allow that sum. in the taxation, had there not been any express agreement of Tzoombly to defray all the, expenses of custody, high as was their amount. — But it does not appear that the officer had any knowledge of this taxation,, or fever consented that that sum should be accepted by him as an Equivalent for the engagement of Tzoombly. We are very cleaÉ *226that such a proceeding cannot deprive the officer of his claim, or settle his rights upon the contract. — We are all of opinion that, upon the evidence before us, the motion for a new trial cannot prevail. — There must be
Judgment on the verdict.