The opinion of the Court was delivered at June Term, 1845, by

Various exceptions have been taken to the rulings and instructions of the Judge, who presided at the trial; and upon one of the grounds relied upon, we think a new trial must be granted.

The Judge instructed the jury, that damages were to be assessed according to the value of the logs attached at the time of the attachment. The general rule in such cases is, as emphatically laid down in Weld v. Green, 1 Fairf. 20. Mr. C. J. Mellen, in that case, says, in reference to property attached on mesne process, and not seized by the attaching officer, Lambert, on execution, “ Had it remained in Lambert’s possession until execution, and been seized and sold thereon, the defendant would have been accountable only for the amount produced by the sale;. and with this Weld (the creditor) must have been content; and why should the defendant be answerable in damages for a greater sum than the fair value of it, when not seized and sold on execution, but lost or misappro*55priated? See Tyler v. Ulmer, 12 Mass. R. 163. Such a sum would be the amount- of injury sustained by the plaintiff; and that is the correct rule in the assessment of damages in such cases.” The learned Chief Justice would not seem to have recognized any exception to this general rule. Cases, however, may be supposed, in which it would become reasonable to depart from it. If the officer, immediately upon having attached property, converts it to his own use, or if he should then realize the full value of it by a sale, or recover the same of receiptors, or of one who had tortiously taken it from him, a good reason would exist why he should be answerable to the creditor for such value. But the case before us is not within any such exception.

The officer must of necessity intrust some one with the care and custody of articles like those attached in this instance; and usually receipts are taken of such person, containing a stipulation to have the articles forthcoming on the issuing of an execution on the judgment to be recovered. The person receipting is, usually, some friend of the debtor’s, procured by him for tlio purpose, who, it is understood, will allow the property to go back into the -hands of the debtor. And this practice is sanctioned, to some extent at least, by usage, as tending at the same time, to the security of the creditor, and producing as little injury to the debtor as may be practicable. In this case it does not appear that a receipt was taken of the person intrusted by the officer with the custody of the property. Nevertheless the person so intrusted, may be believed to have been a friend of the debtor; for nothing is heard of any dissatisfaction from that quarter.

The case finds that the person so intrusted converted the lumber into boards; and disposed of them, partly to pay the amount due to the original owner of the lumber, who had agreed to part with it only upon the condition, that- he should continue to be the owner of it until the agreed value of it, when standing, should have been paid for; and partly to pay the expense of manufacturing it into boards. The officer himself was guilty of no conversion of it; and it does not appear *56that he has ever received any of the avails of it; and so would seem to be precisely within the principle, as to the damages to be assessed against him, laid down in the case cited. In that case the officer had delivered the property attached into the custody of a person deemed by him trustworthy and responsible; and in the case at bar, we have no reason to doubt, that the officer did the same; and in both cases the persons intrusted had so far converted the property to their own use, that they were unable to restore it to be taken on execution.

New trial granted.