Kelly v. Dexter

The opinion of the court was delivered by Bennett, J. The property, which the plaintiff, a con [313] stable of Danby, had attached, on sundry writs against the Huletts, in favor of sundry persons, the defendants had receipted, and by the terms of the receipt they assumed to" return the properly to the officer, or pay for it, according to a given valuation, at their election, on demand, after judgments should have been obtained on the demands upon which the property had been attached. It further appears from the case that, soon after the receipt was executed, the officer sold the property at public auction, with the consent of the creditors, and debtors, and also the receiptors. The sale, as the case finds, was for the benefit of the receiptors, and under their direction ; and the avails of the sale were paid into their hands. The question, then, arises, what must be the effect of such a state of facts upon the contract evidenced by the receipt ? The defendants stood as bailees of this property, without any beneficial interest. The possession of receiptors has been frequently called a naked possession. When the property is returnable on demand, the officer has the right, at any time, to take it from the possession of the receiptors by means of his original lien; and when thus taken, no action can be sustained upon the receipt. When a statute is passed, inconsistent with a former one, upon the same subject, the latter is an implied repeal of the former. The same principle will well apply to contracts. It has been expressly adjudged that a contract is impliedly rescinded by a new and inconsistent agreement. Taylor v. Hillary, 1 Crompton, Mason & Roscoe’s R. 741; also Patmore v. Colburn, Idem., 65. This principle must, at once, commend itself to every lawyer. The property, in the case before us, was sold by the officer, with the consent of all in interest; and it was thus put beyond the power of the defendants to return it. The arrangement is entirely incompatible with the idea that the property should be returned by the defendants in their discharge, as contemplated in their receipt. The sale being by the express consent of all concerned, a new liability is, by implication of law, imposed upon the defendants, from their receipt of the avails of the sale; and it being before any action had accrued upon the receipt, it must, in effect, be kn implied rescinding of the contract. After such sale, I think it clear that the officer [314] could not maintain trover for the property attached, against , . . , ,XT, , , / „ . his receiptors. When, by the consent of all parties, and be-^ore lbe breach of an executory contract, it is put out of the power of the party to perform it, it is most reasonable that be should be discharged from its obligations. If the defendants are to be charged upon the receipt, that must measure the extent of their liability, and not the amount of sales, whether greater or less. It can make no difference that the sale, might have been under the direction of the defendants. It was none the less by the consent of all concerned. It being for their interest to have such sale made, cannot alter the case. If such course was adopted, as to excuse the receiptors from the responsibility of sustaining the property until it should be demanded on execution, it might, indeed, be for their benefit; but what then í It does not follow that they continue liable upon the receipt. Such sale might have been beneficial to the others. They, doubtless, judged it would be, or they would not have consented to it. It can make no difference with the question before us, that the moneys arising from the sale were paid into the hands of the defendants. They, doubtless, hold them in trust for some one. Whether the attaching creditors, or the officer in their behalf, could call them out, either at law or in chancery, or whether the attachments were, in effect, dissolved by the sale, so that the moneys are held by the defendants in trust for the original debtors, are questions not now before the court. The decision of the question which we have considered will, of course, put an end to the present action ; and there is no occasion to consider any other questions raised upon this bill of exceptions. Judgment of the county court reversed.