58 Wis. 223 | Wis. | 1883
Where one has become a receiptor for goods levied on in attachment, he is estopped to deny that he had and still holds the possession of the goods only so far as the attachment is concerned. The receipt is a special contract of bailment, and imports liability only to the parties to the suit in which the seizure is made. Main v. Bell, 27 Wis., 517; Drake on Attach., § 381; Spencer v. Williams, 2 Vt., 209; Allen v. Butler, 9 Vt., 122. It cannot be extended beyond its terms and legal effect, which are that the goods shall be delivered to the officer on demand, or that the re-ceiptor .shall pay the debt and costs of the attachment or execution. Such are the usual terms of the receipt (Drake on Attach., § 345), and such are the terms of the receipt in this case. The receiptor is the servant of the officer who made the levy, to hold the goods attached only to answer the attachment, and it follows that his liability cannot be extended beyond that of the officer at the time of the levy, and his responsibility is measured by that of the officer; so that if the attachment is dissolved, or has otherwise ceased to exist, and the receiptor has suffered the property to go.
When the attachment is dissolved it is the duty of the receiptor either to deliver the property to the officer or to the defendant, and if he does neither, he will be liable to the officer on a subsequent seizure of it in his hands on subsequent attachments or executions, by virtue of his receipt. Upon satisfaction of the judgment in the action of the first levy the contract between the officer and the receiptor or bailee is discharged. Lyman v. Lyman, 11 Mass., 317. In such a case there is a presumption that the officer actually seized the property and delivered the possession of it to the-receiptor, and they are estopped from denying such facts;; but such presumption and estoppel cannot obtain or be extended in favor of any parties except those of the contract, or of any creditor except the plaintiff in the attachment. Webb v. Steele, 13 N. H., 230; Cornell v. Dakin, 38 N. Y., 253; Howes v. Spicer, 23 Vt., 508. Sometimes, and perhaps usually, the receiptor permits the property to remain in the defendant’s hands, whether it has been actually seized by the officer or not. The actual possession in the defendant is not disturbed upon some friend giving the officer a receipt therefor. Such are called nominal attachments, and are so' far valid as to bind the officer for the value of the property, and to give force to the contract between him and the bailee or receiptor; but with respect to strangers, other creditors, or purchasers in good faith or without notice, it is wholly inoperative. In such case other creditors may attach the-property in the hands of the defendant, but not in the hands of the receiptor. Drake on Attach., § 575; Bridge v. Wyman, 14 Mass., 190.
It is in such cases that the presumption arises, as between the parties, immediately interested, that the property was
The complaint is in substance that the plaintiff, as sheriff, seized the goods and placed them in the possession of the defendant; and that the defendant gave the receipt therefor upon the attachment; and that afterwards the plaintiff, as such sheriff, levied upon the same goods in the hands of the defendant certain executions, and notified the defendant thereof; and that he has demanded the same. The defendant denies in his answer that he had the possession of said goods, or that they were ever delivered to him, but alleges that they remained in the hands of the defendant in the attachment after the levy thereof. By the law, as above stated, this was a vital issue in the case. There was no general verdict, and therefore the special findings must dispose of all the material issues of fact which were controverted by the evidence. The only special findings of fact were that the goods were demanded, and that the defendant was notified before the attachment was dissolved that he must hold the goods to answer the executions. There was no finding that the defendant had possession of the goods when this notice was given.
' It was,only by such notice, and not by the terms of the receipt, that the defendant could or is sought to be charged. The attachment was dissolved and the receipt as such was canceled. It is contended by the learned counsel of the respondent that the presumption' is that the goods were actually seized and went into the possession of the defendant as the receiptor,- and that he- is estopped from denying it.
By the Court.— The judgment of the circuit is reversed, and the cause remanded for a new trial.