33 Conn. 184 | Conn. | 1866
Whether the receipt in question is to be treated as a speciality or a simple contract, the evidence offered by the defendants was admissible, and a new trial must be granted. In Fowler v. Bishop, 31 Conn., 560, it was held that an officer’s receipt, though absolute in terms, is nevertheless contingent by operation of law. This is so whether the receipt is under seal or otherwise. The plaintiff can maintain his action only because of his accountability to the attaching creditor, or the owner of the property attached. Clark v. Gaylord, 24 Conn., 484. If the circumstances are such that he is accountable to neither, he can not recover.
If the defendants are right in their claim, the plaintiff can not be liable to the owners for the value of the property, for the owners already have it in their possession; he can not be liable to the attaching creditor, for the debtor did not own the property and no lien was acquired by the attachment. Whatever the plaintiff recovers he must pay over to the true owners, and the defendants are such owners. What propriety is there in allowing the plaintiff to recover of the defendants as receiptors of the property, and then requiring him to pay the money thus recovered to these same defendants as owners ?
But admitting this receipt to be a specialty and governed by the technical rules of law applicable to such instruments, still we should come to the same result. It is undoubtedly true as a general rule that all the admissions and recitals in deeds are to be taken as conclusive against the party making them. But this principle does not help the plaintiff. In this case the receipt contains no admission as to the title to the property. It merely says that it was “ taken by him as the property, goods and chattels of Joseph G-. Merritt; ” but there is nothing in the instrument to show that it was in fact his
For these reasons a new trial is advised.
In this opinion the other judges concurred.
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