Haynes v. Tenney, 45 N.H. 183

Haynes v. Tenney

45 N.H. 183 | N.H. | 1864

Bellows, J.

In Young v. Walker, 12 N. H. 502, property was attached and receipted for by defendant, who afterwards suffered it to go back into possession of the debtor; and the same officer then attached it in another suit, and sold it upon the writ. In trover against the receiptor, it Avas held that the secondattachmentAvas a rescission of the contract of bailment, and that the plaintiff could not recover; and the court say that the property should not be made to perform this double duty at the expense of the defendant.

In the case before us the property Avas not specifically applied in the suit upon which it Avas first attached; but the avails of it were, in part, so applied, and that is substantially the same thing. Had the receipter delivered up the property to the officer, upon a demand in the first suit, there can be no question that it would have been a discharge in both cases; and the payment of the value must, we think, have the same effect. It is true, the contracts was in the form of two several receipts, but it was substantially but one contract, and, for aught Ave can see, must operate much the same as if but one receipt had been made, representing the property to have been attached in the two suits. It was merely a bailment of the property to the defendant, and when surrendered, or the value accounted for, the claim of the sheriff was at an end.

There might be a case, perhaps, when two receipts given at the same time, and for the same description of property, would be regarded as separate and independent contracts of bailment; as if no attachment had *185in fact been made of any property, but separate receipts given, designed and intended to be security of both claims. In such a case if the design was made to appear, it might properly be held that the receiptor was holden for the whole amount in each case. But here there was an actual attachment of the property described in the receipts, on both writs, upon the one in favor of Clough & Corning, subject to the other — and there is nothing in the case that affords any ground for an inference that the receiptor contracted for any thing beyond the delivery of thatproperty. In making up the damages, then, the plaintiff cannot go beyond the value of the property after deducting the amount already paid.

There must, therefore, be

Judgment upon the verdict of the court.