
    Samuel W. Hayward vs. Nathan George. Same vs. Same.
    If mortgaged personal property is attached, under Gen. Sts. c. 123, §§ 67-71, and. the mort gagee summoned as trustee, and the officer subsequently delivers up the property to the defendant in the writ, upon taking a receipt therefor, and the trustee is discharged, no action can be maintained upon the receipt.
    Two actions of contract brought by a deputy sheriff upon two receipts taken by him for personal property attached by him on two writs against Benjamin D. Williams, to whom the property was thereupon delivered. The receipts were signed by Williams and the defendant.
    At the trials in the superior court, before Morton, J., it appeared in each action that at the time of the attachments the personal property was mortgaged to Amariah A. Taft, who was summoned in each original writ as trustee, and appeared therein and made answer setting up his mortgage and averring that a sum exceeding the value of the property was due to him thereon ; and he was thereafter discharged with costs. And the present plaintiff admitted that this mortgage was still outstanding and unpaid, and that a larger sum was due thereon than the value of the property.
    Upon these facts, with others which are now immaterial, the judge ruled that these actions could not be maintained, and directed verdicts for the defendant, which were accordingly rendered ; and the plaintiff alleged exceptions.
    
      T. G. Kent, for the plaintiff.
    
      W. F. Slocum & H. B. Staples, for the defendant.
   Foster, J.

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 the 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.  