Woodbury, J.
In this case we shall first consider, whether the defendant was answerable for such articles as had been attached and not returned to the plaintiff; but, in the place of which articles, others of the same species had been returned, accepted, and sold on the first execution.
(1) 6 John. 9.-9 John. 381.— 9 Mass. Rep. 537.
(⅞) 1 Mass. Rep. 101, Everett vs. Gray et al.-13 John. 219. — 2 John. Ca. 424.
(3) 15 Mas*. Rep. 48.
There can be no doubt of the general principle, that a deputy sheriff must be deemed a bailee of all articles attached, and must return -the same which were attached, unless discharged by such accidents as excuse a return m this species of bailment, or unless discharged by the person to whom he is bound to account.(1)
In the present case we think he has been discharged by the creditor, to whom he was bound to account. The creditor, on a demand of the articles attached, received from the defendant a number of articles nominally the same. The natural presumption is, that they were returned as a substitute for those attached, and that they would not have been received and sold on the first execution, unless they were accepted as a substitute. Such an acceptance, when not caused by fraud or mistake, of which there was here no evidence, ought to estop the creditor.(2)
A contrary view of it would subject the deputy sheriff to a total loss of those articles, and would enable the creditor to obtain, on his execution, both the amount for which they sold, and, also, the amount of the identical articles attached.
If the articles, delivered as a substitute, belonged to the debtor, and not to the deputy sheriff, it would still be oppressive to seize and sell them as a substitute, and at the same time hold the deputy answerable for the original articles.
Indeed, it seems doubtful, whether a creditor can, in good faith, seize and sell other property of the debtor, until what he holds as a pledge or as an attachment has first been appropriated in payment. 8 Mass. Rep. 150.—13 John. 517, Millar vs. Starks.—11 Mass. Rep. 317, Lyman vs. Lyman et al.—13 Mass. Rep. 75.—Sed. 14 Mass. Rep. 156.
We were inclined to think at the trial, also, and our impressions are still similar, that the creditor, under his present declaration, is estopped to recover for these articles, which, in his first count, he admits have been returned.
This is noton the grounds taken in Jackson vs. Stetson & Ux.(3) that a party cannot make different hypothetical statements of one cause of action, or of a defence to one suit, without having one statement considered as an admission of facts [90]*90In the trial of another ; for that, we apprehend, is contrary to immemorial practice as well as authority ;(1) but it is on l^e ground, that the two counts in this declaration are man-jfestly for two distinct causes of action, and that the defendant, not being liable for these articles but once, and having accounted for them on the first execution, as is admitted in ®rst counb cannot be charged for them a second time in the second count on a second writ and execution.
(1)Wíiies 38fl, —2 East-426. s Bac. Ab. 448, 5Taunton228* *fa™’5fcMori ’rn-2.John-437. — T Marshall Rep. 33.
(2) Whitin vs. Bradley, awe'
(3) 12 Mass. itto 498,"fui-~l3dUto225"
. In respect to the articles attached, which proved not to be the property of the debtor, we think the defendant cannot be answerable ; because the creditor has no right to satisfy his judgment on the estate of third persons.(2)
The defendant committed a trespsss in attaching it, was liable to return or pay for it to the owner, unless he assented to the attachment, and, whether either payment or a return had yet been made, the creditor’s rights remained unaug-mented,(3)
On a similar principle,the jury were directed not to charge the defendant for those articles, which, by law, were exempted from attachment. 1 N.H. Laws, 167.—9 John. 99.-13 Mass. Rep. 86.—16 do. 170, 205.
As regards the perishable property, the first enquiry is, whether articles of that character are subject to attachment. At common law, they probably were not subject to-distress. Bac. Ab. “ Distress.” — 2 Ld. Ray. 1426.—7 Mass. Rep. 123. But we dissent from the opinion, in 6 Mass. Rep. 143, that they are not here subject to attachment.
Many articles, such “ as an horse in an inn, sacks of corn or meal in a mill,” &c. were at common law exempt from distress, which were always here subject to attachment. Bac. Ab. “ Distress,” B.— Co. Litt. 47.—Willes 515.—Cro. Eliz. 550.
By the 11th George II. a distress can now be made in England of perishable articles; and the only principle, which exempted them at common law, was the necessity of their removal and their liability to suffer by removal. See also 2d William IÍ1. Gilb. on Distresses, 35.
(1)Tidd 917. —2 John 418. 7 Mass. Rep. 34.
(2) 31 Mass. Rep. 184.
(3) 7 Mass. Rep. ISO.
(4) Gilb* o» distresses 51.
But even at common law ripe grain in the field could be seized on execution.(l) And hay in a barn, has long been held liable to attachment.(2)
Indeed, Parsons, Ch. J. admits, “ that gdods perishable in “ their nature may be attached, if the mere attachment and “ removal of them will not tend to destroy them, or to hasten “ their ruin.”(3)
Such would not have been the tendency of a removal of potatoes and beef at the time these were taken ; and consequently the defendant was bound to attach them, it seems to fellow, that if the defendant was bound to attach and did attach them, he ought to account for them.
But the argument is, that, however carefully these articles might have been managed, they would, from their decaying nature, have become totally worthless long before they were demanded by the plaintiff.
Our statutes make no provision on this subject; and the length of time is so short at common law, between the seizure and sale of property on execution, that the question would seldom or never arise as to its natural decay. The only rule in relation to distresses of dead property is, that it be sheltered in a pound covert.(4) But here, occasionally, a year or two elapses between an attachment and judgment. The debtor does not always obtain receipters, and then, if the property is not sold by consent of all concerned, it remains in the possession of the sheriff; and, if perishable, is sold in the exercise of his own discretion, or permitted to become worthless by natural decay.
The question therefore recurs, whether, without wandering
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Woodbury, J.
In this case we shall first consider, whether the defendant was answerable for such articles as had been attached and not returned to the plaintiff; but, in the place of which articles, others of the same species had been returned, accepted, and sold on the first execution.
(1) 6 John. 9.-9 John. 381.— 9 Mass. Rep. 537.
(⅞) 1 Mass. Rep. 101, Everett vs. Gray et al.-13 John. 219. — 2 John. Ca. 424.
(3) 15 Mas*. Rep. 48.
There can be no doubt of the general principle, that a deputy sheriff must be deemed a bailee of all articles attached, and must return -the same which were attached, unless discharged by such accidents as excuse a return m this species of bailment, or unless discharged by the person to whom he is bound to account.(1)
In the present case we think he has been discharged by the creditor, to whom he was bound to account. The creditor, on a demand of the articles attached, received from the defendant a number of articles nominally the same. The natural presumption is, that they were returned as a substitute for those attached, and that they would not have been received and sold on the first execution, unless they were accepted as a substitute. Such an acceptance, when not caused by fraud or mistake, of which there was here no evidence, ought to estop the creditor.(2)
A contrary view of it would subject the deputy sheriff to a total loss of those articles, and would enable the creditor to obtain, on his execution, both the amount for which they sold, and, also, the amount of the identical articles attached.
If the articles, delivered as a substitute, belonged to the debtor, and not to the deputy sheriff, it would still be oppressive to seize and sell them as a substitute, and at the same time hold the deputy answerable for the original articles.
Indeed, it seems doubtful, whether a creditor can, in good faith, seize and sell other property of the debtor, until what he holds as a pledge or as an attachment has first been appropriated in payment. 8 Mass. Rep. 150.—13 John. 517, Millar vs. Starks.—11 Mass. Rep. 317, Lyman vs. Lyman et al.—13 Mass. Rep. 75.—Sed. 14 Mass. Rep. 156.
We were inclined to think at the trial, also, and our impressions are still similar, that the creditor, under his present declaration, is estopped to recover for these articles, which, in his first count, he admits have been returned.
This is noton the grounds taken in Jackson vs. Stetson & Ux.(3) that a party cannot make different hypothetical statements of one cause of action, or of a defence to one suit, without having one statement considered as an admission of facts [90]*90In the trial of another ; for that, we apprehend, is contrary to immemorial practice as well as authority ;(1) but it is on l^e ground, that the two counts in this declaration are man-jfestly for two distinct causes of action, and that the defendant, not being liable for these articles but once, and having accounted for them on the first execution, as is admitted in ®rst counb cannot be charged for them a second time in the second count on a second writ and execution.
(1)Wíiies 38fl, —2 East-426. s Bac. Ab. 448, 5Taunton228* *fa™’5fcMori ’rn-2.John-437. — T Marshall Rep. 33.
(2) Whitin vs. Bradley, awe'
(3) 12 Mass. itto 498,"fui-~l3dUto225"
. In respect to the articles attached, which proved not to be the property of the debtor, we think the defendant cannot be answerable ; because the creditor has no right to satisfy his judgment on the estate of third persons.(2)
The defendant committed a trespsss in attaching it, was liable to return or pay for it to the owner, unless he assented to the attachment, and, whether either payment or a return had yet been made, the creditor’s rights remained unaug-mented,(3)
On a similar principle,the jury were directed not to charge the defendant for those articles, which, by law, were exempted from attachment. 1 N.H. Laws, 167.—9 John. 99.-13 Mass. Rep. 86.—16 do. 170, 205.
As regards the perishable property, the first enquiry is, whether articles of that character are subject to attachment. At common law, they probably were not subject to-distress. Bac. Ab. “ Distress.” — 2 Ld. Ray. 1426.—7 Mass. Rep. 123. But we dissent from the opinion, in 6 Mass. Rep. 143, that they are not here subject to attachment.
Many articles, such “ as an horse in an inn, sacks of corn or meal in a mill,” &c. were at common law exempt from distress, which were always here subject to attachment. Bac. Ab. “ Distress,” B.— Co. Litt. 47.—Willes 515.—Cro. Eliz. 550.
By the 11th George II. a distress can now be made in England of perishable articles; and the only principle, which exempted them at common law, was the necessity of their removal and their liability to suffer by removal. See also 2d William IÍ1. Gilb. on Distresses, 35.
(1)Tidd 917. —2 John 418. 7 Mass. Rep. 34.
(2) 31 Mass. Rep. 184.
(3) 7 Mass. Rep. ISO.
(4) Gilb* o» distresses 51.
But even at common law ripe grain in the field could be seized on execution.(l) And hay in a barn, has long been held liable to attachment.(2)
Indeed, Parsons, Ch. J. admits, “ that gdods perishable in “ their nature may be attached, if the mere attachment and “ removal of them will not tend to destroy them, or to hasten “ their ruin.”(3)
Such would not have been the tendency of a removal of potatoes and beef at the time these were taken ; and consequently the defendant was bound to attach them, it seems to fellow, that if the defendant was bound to attach and did attach them, he ought to account for them.
But the argument is, that, however carefully these articles might have been managed, they would, from their decaying nature, have become totally worthless long before they were demanded by the plaintiff.
Our statutes make no provision on this subject; and the length of time is so short at common law, between the seizure and sale of property on execution, that the question would seldom or never arise as to its natural decay. The only rule in relation to distresses of dead property is, that it be sheltered in a pound covert.(4) But here, occasionally, a year or two elapses between an attachment and judgment. The debtor does not always obtain receipters, and then, if the property is not sold by consent of all concerned, it remains in the possession of the sheriff; and, if perishable, is sold in the exercise of his own discretion, or permitted to become worthless by natural decay.
The question therefore recurs, whether, without wandering
We are inclined to think, that, on the strength of certain analogies between his situation and the situation of other bailees, but more particularly between his condition and the practice under like circumstances in courts of admiralty, we can hold him liable ; and, as his liability' will cause to him [92]*92neither hardship nor inconvenience, that we ought to hold him liable.
(1) 4 cranch 1S'
If, when the articles attached are perishable, the possession of the sheriff could be considered like that species of bailment called a mutuum, he would be liable to return their value, or other articles of a similar quality. 5 John. 350.—10 John. 287.—13 John. 358.—1 Domat. 132.—Jones on B. 89.—3 Bl. Com. 404.—Justin. In. b. 2 t. 1 25.— And “ if they perish,” says Germaine, “ it is at the jeopardy” of the bailee. Doctor and Student, Dialogue 2, Ch. 38.
Such bailments usually exist concerning grain, fruits, liquors, &c. which are perishable; and if the nature of the articles, in the absence of express contract, always determined the character of the bailment, the sheriff might on this analogy be charged for the value of these articles, but as a depositary be permitted to restore in specie such other articles as were not perishable.
But we prefer to leave the various liabilities of his bailment to be settled as necessity requires ; and, therefore, in charging him for articles of this description, rely principally upon the practice in the courts of admiralty and upon the obvious reasonableness of such a rule.
In those courts, property when libelled, is like property attached among us, taken into the custody of the law as security for the claims against the owners.
If perishable, the marshal, who there seizes it by a special mandate from the court, can by a like mandate sell it; and he is held accountable for only the netproceeds.(l)
Here, as the sheriff seizes it under a general precept, it seems reasonable to permit and require him under the same precept to sell the property, whenever its further detention would expose it to ruin, and thus defeat the very object of the attachment. This course subjects him to no inconvenience and is most beneficial t% both creditor and debtor.
We hold, therefore, that if judgment be obtained before such property is likely to decay, the sheriff ought to restore it specifically ; but if not demanded of him before [93]*93its sound preservation becomes endangered, he ought fairly to expose it to public sale and account for only the net proceeds.
Here he permitted the debtor to consume the property, and consequently was made answerable for its value.
Judgment on the verdict.
16 Mass. Rep. 298.