delivered the opinion of the Court. This case is certainly not without considerable difficulty, arising from the complicated mode of attachment on mesne process, allowed bj the laws of this Commonwealth.
*293The'first question is, whether the goods in Chenery’s shop were well attached by the plaintiff, so that he acquired such lier upon them as an attachment upon mesne process creates. provision in the statute is, that when goods, effects or credits are intrusted and deposited, &c., and a trustee process is served, such goods shall stand charged in the hands of the trustees. The statute further provides, that when execution comes out, such goods may be delivered by the trustee to the officer, and they shall be sold and disposed of and the proceeds applied to the satisfaction of the execution, in the same manner as if such goods had been specifically attached and held in the custody of the officer. The necessary consequence of these provisions, is, that where goods are thus held by a trustee, and a process is actually served, such trustee has a right and is bound to retain the custody of ■ the goods against any one who shall attempt to attach them specifically. This is necessary to secure the priority to the attachment first made of the goods, in the hands of the trustee. Then the question in this case is, not whether these trustees had a good tille under this assignment, it being very clear that they had not, but whether they had the actual custody and possession. And upon the case as reported the Court are of opinion that they had.
An actual assignment was made to Rockwood and Batchelder, and an actual delivery was made pursuant to the assignment, and this was sufficient at law to vest a title in them, as between the parties, defeasible only by the attachment of creditors. It is true, that the custody Was delivered back to the assignor, for a temporary purpose, but before the attachment was made, the key was handed back to the assignees, and at the time of the0 attachment, they held the key of the shop, with the control and possession of it, and through that, the custody and control of the goods. The facts found by the jury establish the point; that the attachment in behalf of the plaintiff on the trustees, was made after 12 o’clock on Sunday night,‘and before any attachment made by Coburn. Under these circumstances, we think that the attachment on behalf of the plaintiff was good, and fixed a lien on the goods, which was not defected by, the subsequent attachment made bv Coburn.
*294Then the question is, whether the plaintiff can maintain this action, as a means of enforcing and establishing that lien.
It appears that the plaintiff proceeded to judgment and execution, and not only had judgment against the principal defendant, but had an award of execution against his goods and effects in the hands of the trustees, Rockwood and Batcheldet, and had a demand of the goods duly made of them. The trustees, instead of delivering them, which they could not do, by reason of the wrongful act of the other officer, in thus seizing them and claiming to hold them for another creditor, authorized the officer employed by the plaintiff to call on Coburn for them, which he did do, but Coburn claiming them as of right, for another creditor, refused to surrender them. Were the trustees compelled to commence a suit to regain the custody of the goods, in order only that they might deliver them over to the officer employed by the plaintiff; or might not the plaintiff, the only party directly affected by the refusal, look at once to the officer who held them ? It is very manifest, that but for the wrongful act of Coburn, the plaintiff would have had the direct benefit of his attachment, and of course that he has lost that benefit, by the act of Coburn. But Coburn was merely acting for another creditor, who claimed to have a prior right to the goods, which however he could not maintain. Coburn, if so required, was bound so to hold them for such creditor, but was entitled to indemnity for so doing. It is therefore the common case of the conflicting claims of different creditors, tried in a suit against an officer, who acts for one of the creditors. We are therefore of opinion, that the plaintiff has a remedy against the officer, thus in his official capacity detaining and claiming the right to detain goods upon which the plaintiff has a legal lien, and that upon the max ini respondeat superior the sheriff is liable.
The Court are also of opinion, that the attachment of the plaintiff and the ten other creditors, all of whose writs were delivered to the trustees at the same time, were simultaneous; and therefore the plaintiff is entitled to recover only an aliquot part of the proceeds of the sale of the goods.
Verdict to be amended according to the agreement of the parties, and judgment thereon to be for the plaintiff.