Beach v. Abbott

Williams, J., delivered the opinion of the Court. — This is art action brought by the plaintiff, to recover of the defendants on their contract to deliver to him on demand certain articles of personal property, which they had received of him. It appears that the plaintiff, as deputy sheriff, had attached the property in question, at the suit of one Heath against Josiah Abbott; that the property was turned out to him by Mr. Steele, the attorney of Heath, and was delivered to the defendants, who executed the receipt on which this action was brought, and permitted the same to go back into the possession of Abbott. Afterwards Mr. Steele took out a writ of attachment in his own favor against Abbott, gave the same to the plaintiff to serve, who by direction of Mr. Steele attached the same property. On the last writ a judgement was recovered by Mr. Steele, an execution issued thereon, and the plaintiff, as [607] deputy sheriff, sold the property attached to satisfy the same. The question is, whether these defendants are liable on their contract, to deliver this property to the plaintiff, when the plaintiff has already taken the same into his own possession, and disposed of it as before mentioned. Considering this as an ordinary case between a bailor and his bailee, it would be too plain to admit of a controversy. If one person delivers property to another to keep, takes a contract for the redelivery, and. afterwards retakes the property into his own possession, the contract must be at an end ; and it would be preposterous to think of maintaining an action on the contract for the same property; The ease under consideration is one of that character. The plaintiff by the attachment had the possession, and the right to the possession,ofthe property attached;the defendants,the receiptsrnen, took the property to keep for him. He had a right to retake the same at any time against their consent, and when he did take it, their contract to redeliver it to him was fulfilled and at an end. There is nothing in the character in which these patties acquired what right they had to this property, which takes this case out of tho general principle before mentioned. The'figbt ofthe plaintiff was by virtue of the attachment in favor of Heath. It was his duty to take the property into his actual custody. When in his custody, the same could not be taken from him, against his consent, except by writ of replevin. All subset quent attachments on the same property would be subject to the first. In Massachusetts, no attachment could be made by any other officer. In this state different officers might probably attach the property, and create a lien thereon, but still could not take the same out of the possession of the first attaching officer. — Hall vs. Walbridge, 2 Aik. 215. The right of the defendants accrued from the delivery of the property to them, and from their contract. As between them and the plaintiff, the possession and the right of possession remained, as before, with the plaintiff, for their possession was his. Whatever attachments or executions ho might receive, and levy on this property, must therefore be subject to the first, as it would be no more than an attachment of property in his possession. It has been supposed that because the property-attached was suffered to go back into the hands of Abbott, the original debtor, it was,there^ fore, liable to be taken again to satisfy his debts, and might be ta* ken by the same creditor and the same officer. This would be [608] carrying the doctrine of a fraud in law to a most unreasonable extent, and would subject the doctrine itself to the charge of folly and inconsistency. It appears to me the whole argument drawn from this, may be answered by inquiring whether if Mr. Beach, the present plaintiff, had suffered the property to remain with Abbott, the debtor, without taking a receipt, he would have been compelled to serve the attachment of Mr. Steele on the same property, and thus defeat himself of all claim under the attachment of Mr. Heath, be compelled to appropriate the property for the benefit of Mr. Steele, and make himself liable to Mr. Heath ? Certainly he could not have subjected himself in this way. A sheriffattaching property, or his receiptors, are liable to have their right to the same defeated by suffering the same to remain with the debtor, where it may be taken by other officers at the suit of other creditors. The law from principles of policy declares, that the first attachment shall be inoperative against other officers ; that though it may be good as to the immediate parties, it is good for nothing as to others. But for the very reason, that it is good between the parties; an officer attaching and suffering the property attached to remain with the debtor, either with or without a receipt, cannot by taking the property again into his possession, make either the debtor orreceipts-men liable in any action for not redelivering the same to him. It might as well be contended that,as a consequence of this rule of law, a purchaser who had suffered the goods purchased to remain with the vendor under a contract to return the same on demand, could attach the same as the property of the vendor, and then sue him on his contract for not returning it. We can see nothing in this principle of the law which would warrant a recovery by the plaintiff on this receipt against these defendants. .On any view which we have taken of this case, we are led to the conclusion,that the plaintiff, having taken into his own custody the articles attached by him at the suit of Heath, which he delivered to the defendants, under their contract to return the same to him when demanded, has no further claim against them on the receipt, unless the property was injured while under their control,but that their obligation was fulfilled when he took the same back into his actualfcustody. The same question, we understand, was decided in the case of Scott vs. Harding and Caldwell, in Orleans county, a few years since, which is not yet reported. From the statement of that case in the argument, as well as from the recollection of our brethren, who assisted in deciding the same, it [609] must have involved the very principle which is presented in this case. But were it a new question we should have arrived at the same result. The judgement of the county courtis affirmed.