116 Mass. 450 | Mass. | 1875
At the time the contract or receipt upon which this action is brought was executed the property therein described had been actually attached in a suit against Ahi Peace. It was then in charge of keepers appointed by the plaintiff, part of it at the mill of Ahi Peace & Co., where it was attached, and part at the depot to which it had been afterwards taken. Upon the giving of the receipt it was surrendered to the firm of Peace & Co., by the plaintiff’s written order on the keepers. The property attached was the property of the firm. There was evidence that the firm was not then able to pay the partnership debts, and that accordingly there-would be nothing left of its assets for the separate creditors of the individuals composing it. The firm was in fact declared bankrupt shortly after, but not till after this receipt had been given. The property was also subject to prior mortgages.
The defence is that upon the facts agreed, and upon the facts testified to, which by the terms of the report are to be taken as true if competent, there was no valuable interest in the property which could be taken by a creditor of Ahi Peace. To which the plaintiff replies that the defendants are estopped from setting this up in their action on the contract.
We are of opinion that under the circumstances disclosed the defendants are not estopped under their receipt from setting up the defence relied on. It is not like a receipt, such as is often given purposely to avoid an attachment, without regard to whether the property recovered in it is attachable or not, or is even in existence. Such a contract is a mere substitute for the security by attachment, and is in effect but an agreement to indemnify the officer for not making an attachment. In such case, the receiptor assumes the absolute liability, and would be estopped to set up that the articles were not the property of the debtor. Thayer v. Hunt, 2 Allen, 449. In this case, an attachment of specific property was actually made and the goods placed under keepers. Upon the giving of the receipt, the defendants were entitled to its custody. We cannot discover anything in the terms of the contract itself, which requires us to regard it as an agreement to indemnify the sheriff. There is no express stipula tian in it that the. property belongs to the debtor, or is liable fol
The proceedings in bankruptcy against the firm of Peace & Co. defeated this attachment. The partnership creditors have a prior right to the partnership property, and the assignment in bankruptcy was a transfer by operation of law of the partnership property for the benefit of the partnership creditors. Allen v. Wells, 22 Pick. 450, 453. This is sufficient to show, without considering the mortgages, that the property has gone to the use of the persons entitled to it. Shumway v. Carpenter, 13 Allen, 68. Bursley v. Hamilton, 15 Pick. 40. Hayes v. Kyle, 8 Allen, 300. Penobscot Boom Corporation v. Wilkins, 27 Maine, 345.
Judgment for defendants.