The opinion of the Court (Emery J. dissenting,) was delivered by
Weston C. J.A receipt given to an officer, upon the attachment of personal property, is an instrument much in use, and has often been presented to the consideration of the Court. It is designed for the security of the officer, and for that alone. Hence if the attachment is dissolved, and the property has gone back to the debtor, the officer can recover *422only nominal damages upon the receipt. Norris v. Bridgham, 14 Maine R. 429, and the cases there cited.
In order therefore to hold the receiptors liable for the value of the property, to respond the judgment of the attaching creditor, a demand therefor is to be made within thirty days from the rendition of judgment, by an officer having the execution, which issued thereon. A demand upon one, is by the terms of the receipt in question, to have the same effect, as if made upon all. It may admit of question, whether the admission of one, upon other points should be conclusive upon the other receiptors. If false in fact, they should be permitted to disprove the admission, as fraudulent and collusive. But taking all the admissions, indorsed on the receipt, to be true, they are not sufficient to show the liability of the plaintiff to the creditor. i:A due and legal” demand is thereby admitted, both by the plaintiff and by the officer having the execution. If it could have been obtained, while remaining the property of the debtor, the officer to whom the service of the execution was confided, was bound to seize and sell it, according to law. And it may have been duly and legally demanded for this purpose, although the thirty days from the judgment had then elapsed. It is contended, that the admission of the continuance of the lien, is implied by the terms, due and legal. This may have been intended; but a majority of the Court do not regard it as' sufficiently explicit to amount to affirmative proof, that the demand was made, within the thirty days. If such was the fact, it may be shown on another trial. New trial granted.
Emery J. — Here was no proposition to disprove the admission as fraudulent and collusive. In the receipt, it was agreed by all the signers of it, “ that a demand on any one of them for said property shall be binding on the whole.” And on the 29th of Sept. 1837, Samuel McGaffy, one of the signers of the receipt, in writing by him signed, on the back of the receipt says, “I hereby acknowledge a due and legal demand, made by the within named Fowles for the property
*423mentioned in the within receipt, and also a demand made by A. H. Hitchcock, deputy sheriff, he having the execution present at the time.”
From this it appears to me, that the jury were authorized to presume and infer that all necessary steps were taken to charge the receiptors ; especially as there was no opposing evidence. It constituted a prima facie case for the plaintiff. Carr v. Farley, 3 Fairf. 328.
In my judgment a new trial ought not to be granted.