The opinion of the Court was by
Tennet J.This is an action against the defendant as sheriff of the county of Penobscot, for the default of J. Leavitt, his deputy, in not retaining certain pine mill logs, which were returned by said Leavitt as attached upon a writ in favor of the plaintiff against one Parrott. At the time judgment was rendered in the original action and execution issued, the defendant had ceased to be sheriff, and Leavitt was not an officer. Within thirty days of the rendition of the judgment, the execution was successively in the hands of one Jones *137and one Hitchcock, both deputy sheriffs, who severally returned thereon, that they had made demand upon Leavitt, of the property attached and he fathed to deliver it. Evidence was introduced, in order to explain the refusal of Leavitt upon the demand made by Jones, and it was insisted by the defendant’s counsel, that Leavitt was discharged from all liability by reason of what took place between him and Jones.
The lien upon property attached upon a writ continues thirty days after judgment, unless he who is entitled to the benefit thereof sooner discharges it by himself, or some one duly authorized. The attaching officer has not the power to surrender it and thereby relieve himself from further liability without the act of the party, who caused the attachment; he is bound to retain it in safety till the expiration of the thirty days, if there be no demand before. But a delivery on a legal demand, will at any time previous, release him ; and he may be discharged also under certain circumstances even without a delivery, on demand being made. If the article be bulky and difficulty attend a removal, it would be an unreasonable requirement, that he should be responsible for a failure to deliver it, on a demand at a place inconvenient and unusual for the deposit and safe keeping thereof, provided he had it ata convenient and suitable place, and professed on a demand to be ready to go to the place, where it was to be found and make the delivery ; and if the demand should be met by a readiness in the other party, to do all in his power to put the property into the hands of the one claiming it, and it should appear, that, a delivery could and would have been made, but for the neglect of the other, in not going and taking possession, the liability would cease. If Leavitt had proved, that he had the property attached, at some convenient and suitable place, and manifested that he was prepared to do all in his power to deliver it to Jones, and was only prevented by the failure of the latter to go with him and take it, he ought to be held discharged. But if the property did not exist at a place of convenience, it would have been an idle and a useless ceremony to have gone. Leavitt gave no information where it was to be found, and the *138jury have by an answer to a question proposed, returned that it was not at the time of demandat the place in which it was when attached. It is settled, that a demand on a note payable at a time and place certain is unnecessary in order to entitle the holder to recover, but a readiness at the time and place may be shown in defence. There is no proof that the property could have been delivered by Leavitt at any place, when it was demanded by Jones, he therefore could not have been discharged by his offer at the time.
The Judge instructed the jury that the demand made by Hitchcock, according to his return upon the execution, was effectual to hold the sheriff; but it is contended on the part of the defendant, that that demand was not in season. Judgment was rendered on the second day of September ; the attachment would expire only with the second of October following and would not be impaired by lapse of time till after-wards. A demand was made on that day, and the presumption is that the officer performed his duty, and made it in season, to allow Leavitt to discharge himself if able and disposed to do it. We think the Judge did not err in this instruction.
The propriety of submitting special questions to be answered by the jury has had the sanction of judicial practice for a long time in this State and in Massachusetts, and has been recently confirmed and established in this State. It is not perceived however in this case, in what manner the general verdict could be impeached, if this practice were not in conformity to legal principles; there is sufficient to support it independent of the answers to the special questions.
Neither are we induced to believe that the instructions in relation to the liability of partnership property to pay the debts of an individual of the firm, so far as he may have an interest therein are incorrect, provided no claim of a creditor of the company is interposed. We think the authorities cited to overthrow or to shake such a doctrine are inapplicable. The propriety of the practice has been examined in a late case, and it is there established, that such property may be holden, consistently with' the instruction given by the Judge.
Judgment on the verdict.