
    Abel Page v. R. R. Thrall.
    A receipt for property attached, in which the receiptor promises the officer “ to re-deliver him the property on demand, or indemnify him against all damages he may sustain in consequence of his having attached the same,” is an absolute undertaking to return the property on demand; and the receiptor cannot justify a refusal under the latter- clause of indemnifying the officer.
    The officer’s right of action accrues on his making a demand, and the statute oflimitations then begins to run.
    This was an action of assumpsit, commenced on the 30th of March, 1837, upon a receipt for certain articles of personal property, executed on the 21st day of April, 1828, by the defendant to the plaintiff, who was then a constable, and, as such, had attached the property mentioned in the receipt, on a writ in favor of A. S. Brown against Warren Drinwater, The defendant pleaded, among other things, the statute of limitations and a set-off.
    The receipt in question contained a promise to re-deliver said property on demand, “or indemnify said Page against all damages he may sustain in consequence of his having attached” said property.
    On the trial in the county court, it appeared by the plaintiffs return on the execution Brown v. Drinwater, that the plaintiff demanded the property receipted, on the 6th October, 1828. It also appeared that Brown, within six years next before the commencement of this suit, had obtained a judgment against Page, the present plaintiff, for the value of the property attached by the latter, as aforesaid, and that the property was afterwards demanded by the plaintiff of the defendant on said receipt.
    There was also testimony in support of the defendant’s plea of set-off, and the jury, under the charge of the county court that the plaintiffs right of action upon the receipt was not barred by the statute of limitations, as the statute only began to run from the demand made after the judgment in favor of Brown against the plaintiff, returned their verdict for the defendant for the balance of the defendant’s claim in offset, after deducting the amount of the plaintiffs claim upon the receipt in question.
    The defendant excepted.
    
      
      R, R. Thrall and E. L. Ormsbee, for defendant.
    The plaintiff’s claim was barred by the statute of limitations. The receipt was conditional, and it was at the option of the plaintiff to elect either condition. He did elect to take the property, and, upon demand for its re-delivery, the statute began to run.
    
      P. Smith, for plaintiff.
    The plaintiff’s cause of action did not accrue until after judgment against him and demand made. ' Hutchinson v. Parkhurst 1 Aik. R. 258. Kendall v. Dodge, 3 Vt. R. 360.
   The opinion of the court was delivered by

Bennett, J.

There are several questions raised on the argument of this case, but as there is one objection which is fatal to the plaintiff’s recovery, there is no occasion to pass upon the others. The action was commenced on ihe 30th of March, 1837, and the only ground of defence necessary to consider, is the statute of limitations.

■ The plaintiff’s return on the execution is plenary evidence against him that the demand was then made, and the right of action would then accrue on the receipt, unless this is to be varied from the common case of an officer’s receipt. It has been urged that this receipt is in the alternative, giving the defendant the right to return the property or indemnify the plaintiff at his election ; and that if he did not return the property on demand, the alternative of the contract became absolute, and that no action would accrue on the contract till the plaintiff had been damnified. But this is not a sound construction of the contract, and cannot be conformable to the intent of the parties. The plaintiff had no power to make any disposition of the property, otherwise than for safe keeping, and to construe this contract, in effect, as a conditional sale would pervert the very object of the parties.

The only effect, which the latter, clause in the receipt can have, is to measure the extent of the defendant’s liability, and is no more than the legal result of a non-delivery of the property. Substitute the word “and” for “or,” and no one would think of making a question, and this gives the contract according to the intent of the parties, In Catlin v. Lowry, 1 D. Chip. R. 396, it was held that a stipulation in an officer’s receipt for property attached, to return the property on demand or pay all costs and damages, was an absolute promise to return the property on demand, and that the rule of damages was the value of the property. So in the case of Sibley v. Story, 8 Vt. R. 15, the stipulation in the receipt was to return the property on demand, or pay the debt and all costs, on account of not delivering it; and this was held to be an absolute promise to return the property on demand, and that the only effect of the latter clause in the receipt was to give the rule of damages. We can have no doubt what must be the legal effect of the defendant’s contract, and that the plaintiff’s right of action was complete upon the making of the demand, and consequently, the statute must be a bar. — , On this single ground the judgment below is reversed, and a new trial granted,  