Adams v. Fox

| Vt. | Feb 15, 1845

The opinion of the court was delivered by

Redfield, J.

The only question in this case is, whether a receipt man may defend the suit of the sheriff, by showing that the property belonged to him at the time of the attachment. The case of Learned v. Bryant, 13 Mass. 222, decides, that the receipt man may show that the property belonged to a third person, who has claimed it, and to whom it has been surrendered. The case of Barsley v. Hamilton, 15 Pick. 40, decides, that the receipt man may show property in himself in mitigation of damages ; and, in consequence of such proof, the recovery was merely nominal in that case. The case of Jones v. Gilbert, 13 Conn. 507" court="Conn." date_filed="1840-07-15" href="https://app.midpage.ai/document/jones-v-gilbert-6575318?utm_source=webapp" opinion_id="6575318">13 Conn. 507, seems to decide, in general terms, that such a defence is available to the fullest extent ; although that question, in that particular case, only affected the quantum of the damages, there being other property, to which that question did not extend.

The principle of all these cases is the same, I think. The question is, whether the officer is answerable over to any one; and if not, the defence is received, to prevent circuity of action. It is rather anomalous, to suffer an officer, in such case, to recover nominal damages; and if it could be justified upon any ground, it would seem to be on that of the receipt man’s not asserting his claim at the time of the attachment, and thus leading the officer astray. In such case, perhaps, the officer ought not to be cast in the suit, and burdened with a bill of cost. And I can conceive, that, if the officer had been induced to forego farther attachment, which he might else have made, in consequence of the receiptor’s silence, he might thus, in equity and justice, make himself liable for the full value of the property. But nothing of that kind exists in the present case. The claim of the receipt man was seasonably asserted, the officer has not been decoyed, or deceived, he is answerable over to no one, and to refuse this defence is to give to this class of contracts a force and validity, which they have not hitherto had.

There is no strict estoppel, except by record, or deed. "When parol contracts have been construed in the nature of an estoppel, it has been to prevent fraud. And, as I have said, if the defendant had made no claim to this property at the time of the attachment, that might present a case, where he would be estopped, by his silence, from asserting a claim to it, or showing any such fact in de-fence of a suit upon the receipt. But, in the absence of all fraud, I apprehend that such defences are always allowed in analogous cases. The person, who submits to the attachment, is supposed to act under a species of duress, because he cannot resist it. It is much the same as one giving bail on an irregular process; he, or his bail, may, ordinarily, defend upon scire facias; Aiken v. Richardson, 15 Vt. 500" court="Vt." date_filed="1843-02-15" href="https://app.midpage.ai/document/aiken-v-richardson-6572746?utm_source=webapp" opinion_id="6572746">15 Vt. 500. It is much the same, in principle, as that of paying illegal toll,- — which the party may always recover back, or he may defend a contract given for the same. This last case is not, however, fully in point, because there is illegality, as well as duress. The receipt only admits the formal attachment, but not that it is If gal, and binding upon the property. The receipt man undertakes to re-deliver the property, or show what will excuse the officer from all liability to any one on account of the property not being surrendered. That was done in the present case.

Judgment affirmed.