The case was continued for advisement, and the opinion of the Court afterwards drawn up by
Shepuev J.It is provided by statute, that goods attached on mesne process shall be held as security for the debt for thirty days after judgment; and if the creditor shall not take them within the thirty days, the attachment shall be void. Statute of 1821, ch. 60, sec. 1. When the officer takes a receipter for the property, such receipter is regarded as his servant; and the goods remaining in the possession of the receipter may be again attached by the same sheriff on a subsequent process ; but where the goods are permitted to remain in the possession of the debtor, the officer by himself or his servant is not regarded as in possession, so that he can again attach the same goods without seising them anew. 9 Mass. R. 258, Knapp v. Sprague. In such case the debtor is rightfully in possession by consent, and his rights cannot be disturbed, unless the persons claiming can exhibit a title to reclaim the property. If the officer or his servant would call upon him, he must show a judgment recovered, and that an execution has issued thereon, and that a demand has been made within thirty days after judgment, unless some agreement shall otherwise specially provide.
In this case judgment was recovered against the debtor in this Court, June term, 1834. The officer had taken the defendant’s accountable receipt for the property attached, to be delivered on demand; and before the tenth day of October, 1833, the plaintiff had demanded the property, and on that day instituted this suit, lie then had a right to repossess himself of the property according to the terms of the receipt. 11 Mass. R. 211, Whittier v. Smith et als.; 3 Fairf. 328, Carr v. Farley. The suit having been rightly brought, the plaintiff is entitled to maintain it.
*432Since that time, judgment having been recovered, and execution sued out, the creditor has neglected for more than thirty days to have arty demand made of the officer, or to pursue such course as to render the officer responsible to him for the property. The officer is at liberty to surrender the receipt and permit the debtor to retain the property, and no suit could be maintained against him for so doing. 8 Greenl. 130, Bradbury v. Taylor; 11 Mass. R. 317, Lyman v. Lyman; 12 Pick. 202, Howard et al. v. Smith; 3 Fairf. 241, Wheeler et al. v. Fish. The officer being released from his liability to the creditor, the defendant may give that in evidence in mitigation of damages, where the debtor has the goods in his possession, as the officer cannot have occasion to recover them for the purpose of returning them to him. Whittier v. Smith et als. The plaintiff being responsible neither to the debtor nor creditor, his damages can be only nominal. 16 Mass. R. 5, Cooper v. Mowry et als.
The demand made of the defendant by the coroner could not prevent him from setting up this defence, as he was not responsible to him. He could not have discharged his contract with the plaintiff by a delivery to the coroner, as the coroner does not appear to have acted as the agent of the plaintiff, or by his authority, or to have professed to do so. The creditor having no right to control the receipt, could communicate,no authority to the coroner; who can have no claim against the defendant by such demand. 3 Greenl. 357, Clark v. Clough. The act was wholly inoperative, and does not change the relation of the parties.
The verdict is set aside, and a new trial granted.