The opinion of the Court was drawn up by
Tenney J.— This is an action of replevin brought for property, the general ownership of which was in the plaintiff. It had been attached on a writ and bailed by the officer to the defendant. One ground on which the suit is attempted to be supported is, that the same property having been before attached on another writ and by another officer, and having been permitted to go back into the hands of the plaintiff, on his giving a receipt therefor, it was not subject to the last attachment ; and in support of this position, c, 60, § 34 of the statutes of 1821 is relied upon.
As the law was before that statute, personal property attached on mesne process and permitted to remain in, or be returned to the possession of the debtor, could again be attached and hold against the first attachment, especially if the creditor or the officer had no knowledge of the previous attachment. To prevent the expense which would materially diminish in many cases the net avails of a sale on the execution, and at the same time to secure the lien created for the creditor’s benefit, the statute was probably enacted. But it alters the former law, no farther, than to preclude a creditor from attaching the same property subsequently, to the prejudice of the first attachment. It was never intended, we think, to prevent creditors from the exercise of any other before existing right. The possession being in the debtor, he can lawfully sell the *540property, when under attachment, subject only to the lien thereby effected. Denny v. Willard, 11 Pick. 519. An attachment made subsequently by another officer may be a trespass upon the rights of the one who made the first, but is not an act of which the owner can complain, and will be a valid attachment, if yielded to by him who made the. first. As bailee of the first officer, the plaintiff has no special property in the goods, and as owner he cannot replevy from the one, who holds them by authority of an attachment on a writ against him.
Again, it is "insisted that as the officer, who made the first attachment, resorted to the security taken for a re-delivery of the property, it has thereby been consumed in discharging that debt, which it was taken to secure. The property has not been so consumed, even if the judgment recovered on the receipt had been discharged. If it had been taken and sold on the execution, it would have been so; but the officer was content to resort to the security of the receipt without availing himself of his privilege in seizing the property. If the execution was satisfied without a resort to the property attached, the attachment no longer existed, and the goods were those of the debtor freed from all claim, excepting that by authority of which the defendant held the possession before the present suit. The liability of the receiptor, or payment by him of the debt, does not by operation of law transfer the lien of the officer upon the property to the receiptor. The general ownership remains unchanged, unless a sale has taken place.
The plaintiff must become nonsuited, and judgment for nominal damages and for a return.