¶1In defence to the action upon this agreement, the court below admitted evidence that the property therein mentioned was not attachable, two of the cows having been previously sold by the debtor, and the other being exempt by law; and, upon such proof, gave judgment for the defendant. This was erroneous. Even if there had been in the writing only the recitals and agreements respecting the property, the express promise and agreement “ that said property is the lawful property of the said ” debtor, would preclude the defendants from setting up title in another, in contravention of their undertaking and warranty.
¶2*477The cases relied on to sustain the defence are all cases m which there was no agreement except to return the specific chattels attached and released, and where the transaction was regarded substantially like a bailment. But wherever the form of the receipt or the circumstances under which it was given are such as to show that it was intended as an absolute assurance for a certain amount or value of attachable property, the parties are never allowed to defeat its purpose by proof that the debtor’s title to the particular property mentioned in it was defective. Dewey v. Field, 4 Met. 381. Wentworth v. Leonard, 4 Cush. 414,419. Thayer v. Sunt, 2 Allen, 449, 451.
¶3This writing contains absolute agreements in the alternative, either to deliver to the officer, on demand, certain property named, as attached on the writ, and which they agree to be the debtor’s lawful property, or to pay the judgment that may be recovered in that suit. There having been a failure to deliver the property on demand therefor, the alternative promise to pay the amount of the judgment recovered has become operative and binding. It is that for which this action is brought, and not damages merely for non-delivery of the property. The release of the property by the officer to the debtor, at the request of the defendants, is a sufficient consideration to support that promise; and besides, the instrument is under seal. The evidence offered and admitted furnished no defence to the action. Hayes v. Kyle, 8 Allen, 300.
¶4The case of Shumway v. Carpenter, 13 Allen, 68, was decided . upon the ground that, the attachment having been dissolved by the insolvency of the debtor, the officer had no longer any interest in the subject matter of the contract, and therefore no right to enforce it in either form. No such defence exists in this case.
¶5Exceptions sustained.