
    Peleg Jenney versus Samuel Rodman.
    A sheriff, having attached A.’s goods at the suit of B., delivers them to C. upon his promise to redeliver them on demand. It is no defence in an action by the sheriff against the bailee upon his promise that A. has an execution against B. for a larger sum than S.’s, against A., which the sheriff has been required to set off.
    This action was brought upon a contract made by the defendant with the plaintiff, a deputy sheriff, the object and effect of which was the safe keeping, and return upon demand, of certain chattels attached by the plaintiff, on a writ in favor of James Wing against Stephen Buffinton. The declaration avers a judgment against Buffinton, an execution issued within thirty days, a demand upon the defendant, and a refusal on his part to deliver the chattels which he had received.
    The plea in bar sets forth a judgment, recovered by Buffinton against Wing, for a much larger sum than that which Wing recovered against him, an execution thereon, and a tender of this latter execution to the plaintiff, with a demand that he would satisfy Wing’s execution, by deducting the amount from Buffimton’s execution against him. To this plea there is a general demurrer and joinder.
    
      Nye, for the plaintiff.
    
      J. M. Williams, for the defendant.
   Parker, C. J.

The plea is no answer to the declaration. The defendant has no right to set up the execution of Buffinton, to avoid his contract with the officer. The receiptor of goods attached is the servant, for that purpose, of the sheriff’; and he must return the goods on demand, in order that they may be disposed of according to law.

[f the debtor has a right to a set-off, on one execution against the other, and the officer refuses to comply, the debtor will have his remedy against the officer, if any damage happen. -But this is a matter not to be settled between him and the re- [ * 465 ] ceiptor, whose duty is simple, and * who is supposed to be merely the keeper of the property for the officer.

The argument of the defendant’s counsel has gone upon the assumed ground, that the debtor retains possession of the property attached, and that the recovery of judgment by him, and an offer to set off upon his execution, the amount of that which the officei holds against him, is equivalent to payment and satisfaction.

However this might be between the debtor and the officer, it is not so between the parties now before us. The receiptor is not to be considered the agent of the debtor; and it does not appear by the pleadings in this case that, by the consent of the officer, the chattels were to remain in possession of the debtor. For aught that appears, the debtor has a right of action against the officer for his goods attached, provided he had a right to the set-off; and the officer is entitled to the property, to enable him to discharge his duty towards the debtor.

Plea in bar adjudged bad.  