Debt on a joint and several bond given by Robert Jewell, Jr., as principal, and Brackett Jewell, as surety. The condition of the bond recites the attachment of certain personal property, at the suit of the obligee, as the property of Robert Jewell, Jr., and is conditioned to redeliver the property to the obligee within thirty days after judgment in that suit; *224with a further provision that Brackett Jewell does not thereby waive any of his rights as mortgagee on the same property by an anterior mortgage from Robert to secure a note for $100 and interest. This last provision was assented to by the obligee, by his acceptance of the bond with this provision inserted.
The first object seems to be, to ascertain the true meaning and intent of the parties in this contract. Some aid can be obtained by considering the relations in which the parties stood, as manifested by the recitals and provisions of the bond. The property in question was not the property of the plaintiff; the attachment of it as the property of Robert was repugnant to a claim of title in himself. It was not the general property of Brackett Jewell; for he held a mortgage upon it as collateral security for an unpaid note. It is manifest therefore that the general property was in Robert. Again, as the whole object of this arrangement was to restore the possession of the property to the debtor, as before it was attached, it necessarily dissolved the attachment. The only interest therefore, that the plaintiff had in the redelivery of the property to him, was contingent on getting judgment against the debtor, that it might be applied by an officer, to satisfy his judgment. Such, therefore, is the legal effect of the condition, so that if the plaintiff should not recover a judgment in his suit against Robert, there could be no breach. Then as the fact of the recovery of judgment by the obligee against Robert Jewell, and especially the time of such recovery, would be known to the plaintiff, and perhaps to the defendant, yet Brackett was a stranger to it, and therefore not presumed to know it. The fact of the rendition of judgment in favor of the obligee, and the time of such rendition must therefore be notified to the defendant, Brackett Jewell, in order to charge him with a breach. Baker v. Fuller, 21 Pick. 318.
The goods having already gone into the hands of the debtor, as whose property they were attached, the plaintiff had no occasion to have the goods returned, except to satisfy his own judgment. He was not in the condition of an attaching officer, who has delivered goods to a third party, for safe keeping, on a bond to redeliver them. In such case, the officer is responsible for the *225goods at all events; to the creditor on his attachment, if he gets judgment and has execution ; otherwise, to the original debtor. Here no claim could exist in behalf of the debtor; for he has already received his goods.
2. Another direction of the court requires consideration. The court instructed the jury that if they found the mortgage — the mortgage of the same goods by Robert to Brackett — to be a valid one — valid as against creditors — and the defendant was in possession under it at the time of the attachment, his refusal to deliver up the property on demand would not be a breach of the condition of the bond. This at first seemed more questionable, but on examination we are of opinion that it was quite correct.
When the plaintiff attached the property as the property of Robert he found it mortgaged de facto to Brackett. He had one of two courses to pursue: he might admit the validity of the prior mortgage, and on notice of the amount pay the mortgagee, and then hold the property, both for the sum thus paid and for such debt as he should get judgment for. If he did not do that at that stage, his only other alternative was to contest the validity of the mortgage as against creditors altogether, to show it void as to them, and so hold the whole of the property for the satisfaction of his own execution. By failing to tender payment of the mortgagee’s claim, when notified to him, he had lost the opportunity of thus paying the mortgagee’s debt, so as to avail himself of the surplus value of the property over the mortgage debt, if any, for the satisfaction of his own. The only beneficial use that the obligee could have made of the chattels, if redelivered to him, was to place them in the hands of an officer having his execution, to be applied in satisfaction of his judgment, and this he could only lawfully do by showing that the mortgage was utterly void against him and other creditors of Robert. This provision in the bond made this question of the validity of that mortgage a question in issue in this suit and the court rightly instructed the jury that, if they found the mortgage to Brackett, the sole defendant in this suit, valid, the defendant would not be bound to deliver up the goods, even on demand.
*226This construction of the bond gives to the obligee the same rights as attaching creditor, that he would have had if the property had remained in the custody of the attaching officer and no. bond been given. The plaintiff could have no benefit from his attachment without recovering a judgment against his debtor ; nor could he hold against the prior title of the mortgagee, without showing the mortgage of Robert to Brackett fraudulent against creditors and void. Such proof might have been made perhaps in a little different form, as in a suit by the mortgagee against the officer; but it must be shown in some way, and the burden of proof would have been on the attaching creditor to prqve such fraud. Exceptions overruled.