The first question is settled in the case of Parker v. Dennie, 6 Pick. 227. The party who makes the *391first attachment on set eral parcels of property has a right to levy on such portion as he thinks proper, without regard to the claims of subsequent attaching creditors. The plaintiffs therefore had a right to have the property attached in Washington street applied to their executions, so far as it was not wanted for the satisfaction of the executions of the Franklin Bank and Adams.

It is objected that the actions were prematurely brought, having been commenced before the return day of the executions. But where the party is injured by the officer’s misfeasance, he is not obliged to wait until that day. Here the officer had the money in his hands, the goods having been sold on mesne process, and it must be considered as having been applied to these executions. In many cases the officer is able very early to obtain the money due upon an execution, and the question is whether he shall pay it over immediately to the creditor, or retain it in his own hands until the return day. It may be questionable whether he is bound to pay it sooner without a demand, but upon a demand being made, we think it is his duty to pay it over. The letter from the plaintiffs’ attorney was a sufficient demand, and the plaintiffs are therefore entitled to recover, unless another objection on the part of the defendant shall prevail.

This objection is founded on the plaintiffs’ refusal to give Parkman a bond of indemnity. Parkman has money in his hands which the plaintiffs say belongs to them and which they are seeking to recover by action. We are of opinion, that their refusal to give the indemnity requested does not destroy their right to the property, though it may excuse the officer for retaining it until the.question of title shall be decided.

The plaintiffs being then entitled to recover, the question is what shall be the amount of the damages. They claim five ‘times the lawful interest, the penalty prescribed by the statute for unreasonably neglecting or refusing to pay over money collected on execution. But it was not unreasonable for the officer to retain until the conflicting claims of the plaintiffs and other attaching creditors should be settled. Bayley v. French, 2 Pick. 586. It is not intimated that there was any intentional wrong here, on the part of the officer.

*392The statute was designed to apply to cases of retaining money from sinister motives.

The plaintiffs will take judgment for the amount of mcnej in the hands of Parkman, with interest at the rate of six per cent, from the time of the demand.