Where a creditor attaches mortgaged personal property and summons the mortgagee as trustee, pursuant tc the provisions of Gen. Sts. c. 123, §§ 67-71, he acquires the right to examine the mortgagee under oath concerning the consideration of the mortgage and the amount of the debt secured by it; and to have a trial which shall determine its invalidity, or ascertain the sum to be paid in redemption. On the other hand, the mortgagee also is entitled to have the course marked out by *67the statute pursued. The attaching creditor must pay to him the amount ascertained to be due on the mortgage within the time prescribed by the court, or restore the property. He cannot discontinue as against the trustee without vacating the attachment. In the present case, the judgment discharging the trustee operated as such dissolution, and terminated all the creditor’s interest in the mortgaged property attached. Martin v. Bayley, 1 Allen, 381.
This being so, the present plaintiff cannot recover against the receiptor for the benefit of the creditor. Nor can he recover for the benefit of the debtor, the mortgagor, to whom, upon the execution of the receiptor’s contract, the property was at once redelivered. Nor, upon the evidence, is the deputy sheriff under any liability to the mortgagee, by virtue of which he can maintain the present action. As soon as the property was redelivered to the mortgagor, the mortgagee was restored to all his rights, and could enforce his mortgage as well as if no attachment had been made.
During all the time the property was held by the officer under the writ of attachment, the proceedings were regular and in conformity with the statute. If the officer had given up the property as soon as the trustee was discharged, be would have performed his exact legal duty in the premises; but he did give it up long before. And there has never been any moment of time when he was a wrongdoer and liable to an action by the mortgagee.
This view of the law disposes of both actions between the ■'orties, in each of which there must be
Judgment on the verdict for the defendant.