This case was decided in June 1860.
Hoar, J.The general doctrine is well established, that if a sheriff seizes goods under a writ which it is his duty to return, he has no justification unless he discharges that duty. Britton *142v. Cole, 1 Salk. 408. Shorland v. Govett, 5 B. & C. 488, and 8 D. & R. 261.
In this case the action was brought before the writ was returnable, and the attachment was dissolved by the proceedings in insolvency before the return day; and upon these considerations it was ruled at the trial, that the return indorsed upon the writ might constitute a justification. But, upon full examination, we are all of the opinion that this ruling was erroneous, and that a new trial must be granted.
If the action had been brought against the attaching officer and a trial had before the writ upon which he made the attachment was returnable, his production of the writ with his return upon it would be sufficient, because he is the proper custodian of the precept until the return day. So if, by agreement of all parties in interest, the writ had not been returned, he might justify without returning it.
The case of Wilder v. Holden, 24 Pick. 8, which seems at first inconsistent with the general rule, and in some of the reasoning contained in the opinion of the court may be so, can be sustained upon a distinction obviously just. That was an action for a malicious prosecution of the plaintiff by the defendant for the crime of larceny. The defendant, to show probable cause, offered evidence of the attachment of property by an officer, who put it into the custody of a receiptor; and of a secret taking of it from the possession of the receiptor by the plaintiff, before the return day of the writ. It is very plain that the defendant’s cause to believe the plaintiff guilty of larceny could not be affected, in any way, by the ■ subsequent neglect of the officer to return the writ. The attachment was as much a fact at the time he acted, whether the writ was afterwards returned or not.
Perhaps a distinction would be made, upon somewhat similar grounds, between the responsibility of an officer holding a precept which he should fail to return, and that of a person whose assistance he should lawfully command to aid him in the service. In Britton v. Cole, above cited, and in various English cases, the difference in this respect between a sheriff and his *143assistant, bailiff or inferior officer, is expressly recognized. The bailiff has no custody of the writ, and is not therefore under obligation to return it.
The case at bar differs from the case of Russ v. Butterfield, 6 Cush. 242, only in the fact that in that case the action against the officer was not commenced until after the return day of the writ, while in this it was commenced before the writ on which the property was attached was returnable. But upon principle we do not think this circumstance material. The officer, by failing to return his writ, deprives himself of a defence which he might otherwise have made available. New trial granted.