
    Bicknell versus Hill.
    In a suit by an officer upon a receipt given for property attached, the officer’s return upon the execution, that he seasonably made a demand upon the receipter, is not an act required in his official duty, and therefore is not evidence.
    When the promise contained in such a receipt is, that the property shall be delivered “ on demand,” the demand is a condition precedent.
    Inability of the receipter to redeliver the property does not waive the necessity for a demand, in order to fix his liability.
    On Exceptions from the District Court, Hathaway, J.
    Assumpsit. — The plaintiff was a deputy sheriff. He attached a schooner upon a writ, and took therefor a receipt signed by the defendant and acknowledging that he had received her from the plaintiff, as property attached on a writ specified, and promising to redeliver the same on demand. This suit was brought upon that receipt.
    Judgment was recovered against the defendant, in the original suit, and within thirty days from the judgment, the plaintiff, still being a deputy sheriff, returned upon the execution, that he had made demand, June 28, 1849, upon the receipter for the schooner, which he refused and neglected to deliver. There was no other proof of a demand.
    
    
      It was admitted that “ after the attachment the schooner was restored to the owner and went to sea on a voyage to Ponce Porto Rico, and did not return in the year 1849.”
    A nonsuit was ordered, to which the plaintiff excepted.
    Blake, for the plaintiff.
    I. A demand was unnecessary.
    1. The attachment was made in May, and judgment was recovered in June. At the time of the judgment, and for more than -thirty days afterwards, the schooner was at sea. A demand therefore must have been unavailing.
    2. The restoration of the schooner by the defendant to the owner defeated the plaintiff’s lien upon her. 13 Pick. 139 ; 16 Pick. 144. This was a violation of the defendant’s contract, by which he became absolutely liable, it appearing by the case that the officer was liable to the attaching creditor.
    II. The officer’s return of a demand was sufficient. It was an official .act, and .therefore, at least prima facie evidence. ] 3 Maine, 245; 4 Burrow, 2129; 11 East, 297; 20 Maine, 372; 21 Pick. 187; 7 Cow. 313.
    
      A. W. Paine, for the defendant.
   Tenney, J.

— The restoration to the owner, of the property attached by the plaintiff, on the original writ, in favor of Elisha Parker against George F. Granger, which went to Ponce Porto Rico, was a dissolution of the attachment. The receipt was for the indemnity of the plaintiff for surrendering the property to the owner, and was a matter, in which the creditor is not shown to have had any interest whatever. The execution having been placed for service in the hands of the plaintiff as a deputy sheriff, within thirty days after the judgment was rendered, fixed his liability, for not retaining the property, which he had returned as attached upon the writ.

A demand made by the plaintiff upon the defendant had no connection whatever with his official duty in the execution •of the precept. The failure of the defendant to deliver the property upon a demand, was no excuse to the officer for his omission to retain it, and had no effect whatever to modify his liability or to qualify the relations between the plaintiff and the creditor, before existing. And the certificate made upon the execution cannot be regarded a part of the regular discharge of his official duty. If instead of the receipt for the property attached, the defendant in consideration of the surrender thereof, had negotiated a promissory note against a third person', payable on demand after a certain specified time, for his indemnity, it could not be contended with propriety, that the certificate of the plaintiff, as deputy sheriff, upon the execution, would be evidence, that the demand had been made according to the tenor of the note, more than if it had been made upon any other paper. The case before us, and the one supposed, are not essentially unlike in principle.

The cases cited for the plaintiff are not applicable to the case at bar. In them, the facts certified in the return were official acts, were prima facie evidence of their truth, and constituted a part of the return. The case of Rex v. Elkins, 4 Burrow, 2129, was where a rescue was returned by the officer. In the case of Gifford v. Woodgate & al. 11 East, 297, the facts stated in the return of the officer had relation to his duty as an officer, and if true, were an excuse for the unusual course pursued by him. In Kendall v. White & al. Exr’s, 13 Maine, 245, an attachment had been made by an officer on the original writ, and the execution recovered was put into the hands of another officer, within thirty days after the judgment was rendered, and it became necessary in order to make the attachment available, or to make the officer liable absolutely, that a demand should be made upon him for the property returned. It was clearly, as decided, an official act to make the demand by the second officer, and the return thereof was prima facie evidence.

Was a demand of the vessel necessary before the commencement of this suit? So far as it would be the means of obtaining the vessel, it must be regarded as unavailing. She had been gone for more than six months, and there is no evidence that she could be surrendered in season to meet the wants of the creditor, or the officer upon the execution. But by the terms of the receipt, in the case of a failure to deliver the property, v)hen demanded, the defendant was to indemnify and save harmless the plaintiff, from all damage, loss, trouble and expense, that might in any way accrue to him on account of such failure to deliver. The demand was made a condition precedent. It was to be made to entitle the plaintiff to the indemnity. And it was not a void ceremony. The defendant would not be liable, unless the execution was put into the hands of an officer within thirty days ; and the plaintiff would of course know that fact, if it was delivered to him, as it was; and if put into the hands of another officer, the plaintiff and the defendant would be no longer liable,- unless the demand was made upon the officer, within the thirty days. The defendant was not expected to know, at what time the judgment would-be rendered or the execution committed to an officer for service, nor the amount of the judgment, or the sum necessary for the officer’s indemnity. He was entitled to the demand that he might make payment of the sum necessary to indemnify the plaintiff. There being no legal proof of this, before the commencement of the action, it could not be sustained under the evidence presented at the trial.

Exceptions overruled.

Nonsuit confirmed.  