The opinion of thé Court was drawn up by
Tenney J.— The orders in writing upon the writs required the officer, to whom they were directed, to attach sufficient personal property. The directions, given by one of the plaintiff’s attorneys, authorized him, on failure to obtain a certain *563note as security, to take the receipt of Allen Gilman, the father of the debtor, for the goods, which he was directed to attach. It is unnecessary here to inquire, whether an officer is excused for omitting to observe written orders upon writs, when he follows those afterwards given, which are verbal and inconsistent with the fotmer; for those which were written in this case were in nowise varied by the others; and both were fully complied with.
Was the direction of one of the attorneys, to take the receipts of Allen Gilman for the goods attached, sufficient to protect the officer for so doing, and exonerate him from liability for not retaining the property ? In the case of Jenney v. Delesdernier, 20 Maine R. 183, it has been decided by this Court, that an attorney has power to approve a receipt taken by an officer, for goods attached; a fortiori, is the officer justified in taking a receipt in pursuance of and obedience to the instructions, given by the attorney, at the time, when the writ was delivered to him ; the orders to attach and to take a receipt were here simultaneous, and the officer has as much right to protection by a compliance with the latter, as he was bound to act in obedience to the former.
Did the Judge err in the construction put upon the plaintiff’s letter to S. J. Foster of the 8th of March, 1836 ? This letter was a direction to secure the demand enclosed, both of which were at the same time given to the plaintiff’s attorneys. It required no specific kind of security, and therefore the whole was left to the discretion of the attorneys in that respect; and the case referred to, authorized the course taken by them, and the plaintiff was bound thereby.
It is insisted, that as the receipt taken in the last case is an engagement, to deliver the property described therein, “on demand after judgment,” and it not appearing to have been exhibited, or its terms made known, to the attorneys or either of them, and not being approved, the instruction of tho Judge was erroneous, inasmuch as the officer had no direction to lake the receipt in the terms used. The object of the attachment was, that there might be prqperty secured, to satisfy the judg*564ment sought to be obtained. No doubt of Allen Gilman’s ability to meet his engagement in the receipt was manifested by the attorney, who authorized taking the receipt, after an attachment, which, from the evidence reported, must have been expected to be only nominal. No use could have been made of the property returned upon the writ, for the purpose of satisfying the debt without consent of parties, till after judgment. As the direction to the officer contained no time, when the receipter should be holden to re-deliver the property, we think the officer was warranted in presuming that the attorney had no wish, that it should be restored to his possession till needed to satisfy the judgment and execution. The terms of the receipt we think were in compliance with the directions given.
Was the officer, who made the attachments, a competent witness after he was released by the defendant ? It is contended that he was not released from his bond, and that his sureties are still holden to the defendant, and they have a remedy upon the officer for the amount, which they may pay to the defendant. When the witness is discharged from all damages and costs arising out of this suit, we are unable to perceive how he can be holden therefor on the bond which is embraced in the terms used. How can any cause of action be prosecuted against the sureties on the bond, when that cause is cancelled by a release as effectually as it would be by payment ?
If the defendant had given time to the principal on the bond for the payment of such sum as might be recovered against him, without the consent of his sureties, they would be discharged. They must be equally so, when he has released the principal entirely and absolutely, and thereby taken from them the remedy against him, if they could otherwise be holden. It has long since been settled in this State and Massachusetts, that an officer, for whose default an action is brought against the sheriff, is a competent witness for the defendant in the action after being released by him. Jewett v. Adams, 8 Greenl. 30.
Judgment on the verdict.