The opinion of the Court was drawn up by
Tenney J.This is an action of trespass, alleged to have been committed by E. W. Kelly, a deputy of the defendant. Kelly having attached certain goods described in a schedule annexed to his return upon a writ in favor of one Sturtivant against John O. Wing, the owner thereof, on the 11th June, 1841, and having kept the same by his servant without removal, till the 14th of the same month, took a receipt of certain goods of the value of $300 signed by the plaintiff and one Benson, and thereupon delivered up all the goods, and left the plaintiff in possession of the store. Wing and the plaintiff the same day commenced taking an account of the goods, which they completed on the 16th of June, and the plaintiff became the bona fide purchaser thereof, agreeing to pay, as a part of the consideration, the debt to Sturtivant. On the same day, after the purchase, the plaintiff, Wing and others being in the store, Kelly informed the plaintiff, that he had a writ in favor *181of Samuel Parsons & al., against Wing, and said ho must take the goods; the plaintiff replied, “ Well, they are all hereand Kelley handed him the receipt, which the plaintiff took and put in his hat, and told Kelly he had purchased the goods ; Kelly replied, that ho “ supposed that was the fact, but he acted under instructions, was indemnified and must go ahead; the plaintiff told Kelly he had better take the receipt which he refused to do; but took the key of the building, the goods which had been attached, and others being there, and locked up the store; and made return upon the writ in favor of Parsons & al. of the goods before attached, subject to the former attachment; the plaintiff left the store and made no objection to the course taken by Kelly. Sometime afterwards, all the goods in the store were returned by Kelly as attached upon writs made upon two other debts against Wing, which were subsequently settled by the notes of the plaintiff and Wing, the creditors having made a discount in consideration of a release to the defendant of all liability on account of the attachment upon these two writs. The store in which the goods were, was owned by Kelly, who had leased the same by parol to Wing. Neither Wing nor the plaintiff had been notified to quit the store previous to tiro attachment upon the writ of Parsons & al. or to remove the goods. The goods mentioned in the schedule, were sold upon the execution issued upon a judgment recovered by Sturtivant in his action against Wing and return thereof made. A bag of wool, which had been left in the store by the plaintiff to be sold before the first attachment, was in the store, when Kelly took possession on the 16th of June.
The Judge instructed the jury, that if the sale from Wing to the plaintiff was bona fide, the foregoing facts constituted a taking of all the goods in the store, and the plaintiff was entitled to recover the value thereof at the time of the taking, deducting the amount of Sturtivant’s execution, and all fees thereon.
To preserve an attachment of property, like that in contro*182versy, the officer who made it must retain the control thereof himself or by his servant, or have the power of taking immediate possession; if the possession is abandoned, the attachment is dissolved. Nichols v. Patten, 18 Maine R. 231; Waterhouse v. Smith, 22 ib. 337. It may well be doubted, whether the officer can retake such property, after he has delivered it up, on receiving security for its redelivery, or the payment of its value, without the consent of the owner or the receipter; the officer is interested only to have the means of satisfying the judgment, which the attaching creditor may recover. On a fair construction of such instruments, as the receipts usually given for property attached, is it the understanding of the parties thereto, that before judgment, the officer can take possession of the property, unless the assent of the owner or receipter is first obtained, especially, if there be no suggestion, that the latter is not of sufficient ability to make indemnity ? To give him this power would certainly allow him to disregard the spirit of his contract, and expose the property often to a ruinous sacrifice. The promise of the receipter is to do one of two things, and like other contracts of the kind the election is with him. In Robinson v. Mansfield, 13 Pick. 139, the Court hold the lien created by an attachment discharged, and the obligation of the receipter substituted for the goods. In Carr v. Farley, 3 Fairf. 328, C. J. Weston says, “a wanton and unnecessary interference is not to be encouraged.” But if the receipter and the owner of the goods attached consent that they may be taken, the officer cannot be a trespasser.
In the present case Kelly having had possession of the goods in the store, under attachment, by his servant, from the 11th to the Í4th June, and then having delivered them up, on the promise of two persons to redeliver them on demand, or pay their value, must be considered to have abandoned the possession, and permitted them to go to whomsoever they belonged ; the receipters could not be the servants of the officer in the same sense as was the one who held the possession previously, after the attachment, and they held no different relation to the officer, than that of receipters, where the pro*183perty is permitted to go back to the hands of the debtor. Here it did go into the hands of the debtor by the permission of the receiptors, for immediately after, by the sale, he was exercising the most important acts of ownership and dominion over it. The plaintiff afterwards succeeded to all the rights of Wing, by the purchase and possession of the goods. Knapp v. Sprague, 9 Mass. R. 258; Denny & al. v. Willard, 11 Pick. 525.
The exceptions disclose no evidence of a demand by Kelly of the goods on the evening of the 16th June, that they might be held for his indemnify for his return thereof upon Stur-tivant’s writ; but on the other hand announced that it was his duty and intention to attach them upon another writ; he did not take possession upon what he treated as a voluntary surrender of the goods by the plaintiff, but on being notified by the latter of his purchase, he expressed his knowledge of that fact, but said he “acted under instructions, was indemnified and must go ahead.” When the receipt was handed to the plaintiff and taken by him, it was in consequence of no agreement or understanding, so far as the case finds, that the goods were to be delivered, or the receipt cancelled; at the same time the plaintiff offered to return the receipt as a subsisting contract. The return of the goods upon the second writ, under the date of the 16th of June, shows they were taken by the officer for that purpose, and not for his indemnity for his liability on the first writ. The submission of the plaintiff to the acts of Kelly, done in obedience to his instructions, his indemnity and supposed duty, cannot prejudice his claim; remonstrance would have been unavailing, and resistance criminal.
The taking complained of by the plaintiff was one entire act, and was declared by Kelly, and shown by the defence, to have been upon the writ in favor of Parsons & al. v. Wing ; the plaintiff was dispossessed of all the goods, and because a part only were returned upon the writ, the defendant cannot escape liability.
*184The store being the property of Kelly cannot be a protection to the defendant. If the plaintiff had no right to continue in the occupation, the goods having been rightfully deposited in the store, he was entitled to a reasonable time, after notice, within which to remove them, which was not allowed. Ellis v. Paige, 1 Pick. 43. But the officer gave no such reason for excluding the plaiiitiff and shutting the store, but one altogether different.
The wool was taken by Kelly as much as any of the goods in the store, and he was not excused, because the plaintiff held it by a different title, from that of the other goods.
The release given by the plaintiff to the defendant was for a distinct and subsequent act of the deputy sheriff; it was specially agreed, that it should have no effect upon the claim prosecuted in the present suit, and the instruction of the Judge was fully authorized, that the jury would disregard entirely the release.
The rule of damages was correct. The taking proved, was not one, which the officer was authorized to make, but was' tortious, and the defendant was liable- for all the injury occasioned thereby.
The question of fraud was one peculiarly within the province of the jury to settle. There was evidence sufficient to authorize the finding upon this point, standing uncontradicted ; and that of a controlling character was not so conclusive as to warrant the Court to disturb the verdict.
Exceptions and motion overruled.