39 Wis. 339 | Wis. | 1876
Main v. Bell, 27 Wis., 517, and Heath v. Keyes, 35 id., 668, were actions by a sheriff and constable or village-marshal, respectively, against the receiptors of property seized by such officers on attachments or executions. In both cases it appeared that the property was allowed by the receiptors to remain in the hands of the debtors, and was exempt from seizure on such processes; that the exemption was claimed when the seizures were made and receipts given; and that the officers were not liable over to any party interested, on account of such seizures. Under those circumstances it was held that the receiptors were not liable to respond in damages for the nondelivery of the property to the officers. To the same effect is the case of Connaughton v. Sands, 32 Wis., 387. See also the cases cited in Main v. Bell.
The principle of law upon which these cases were decided, is, that although the receiptor agrees, in terms, to deliver the property seized to the officer, yet the obligation to do so is not absolute in all cases and under all circumstances. The officer can enforce the agreement to deliver the property, or recover damages for a breach of it, only when that is necessary to enable him to answer his obligations to some party having an interest in such seizure. If the officer is not liable to any one because of his failure to hold or sell the property
This principle has been applied in many cases where the goods seized and receipted for were not the property of the debtor but of a stranger, and the receiptor has delivered them to the real owner. Judge Stoet, in his work on bailments, states the rule and its application to such cases as follows: “ If the officer has wrongfully attached the goods of a third person, as the property of the debtor, and has bailed them, the bailee may, by a delivery of them to the true owner, protect himself; for by such redelivery the officer will be discharged from any liability for the goods to the creditor and debtor and the real owner.” § 132. To this proposition the learned author cites the following cases : Learned v. Bryant, 13 Mass., 224; Dewey v. Field, 4 Met., 383; Fisher v. Bartlett, 8 Greenl., 122; Burt v. Perkins, 9 Gray, 317; to which may be added Hayes v. Kyle, 8 Allen, 300; Shumway v. Carpenter, 13 id., 68; Lewis v. Webber, 116 Mass., 450.
It is quite true that there are cases which seem to hold a contrary doctrine. Cornell v. Dakin, 38 N. Y., 253, to which reference is made in Mann v. Bell, supra, is one of these. But the weight of authority seems to support the doctrine laid down by Judge Stoey.
We think the same doctrine is applicable where the goods receipted for belong to the receiptor. If, in the present case, the property for which the receipt was given belongs to the defendant, the creditor has no right of action against the officer for failing to sell the same on the execution. Should the creditor sue the officer for neglecting to satisfy the execution out of such property, the latter can defeat the action by showing that the property did not belong to the debtor. Fisher v. Bartlett, 8 Greenl., 122; Fuller v. Holden, 4 Mass., 498; Tyler v. Ulmer, 12 id., 163. Neither has the defendant in the execution any right of action against the officer; for he has not been deprived of his property or in any manner inter
“ § 392. But as between him [the receiptor] and the officer, in an action by the latter on the receipt, where the receipt admits the goods to be the defendant’s or to have been attached as his, it has been repeatedly held that the bailee is estopped by the receipt from setting up property in himself. Johns v. Church, 12 Pick., 557; Robinson v. Mansfield, 13 id., 139; Bursley v. Hamilton, 15 id., 40; Dewey v. Field, 4 Met., 381; Sawyer v. Mason, 19 Maine, 49; Penobscot Boom Co. v. Wilkins, 27 id., 345; Barron v. Cobleigh, 11 N. H., 557; Drew v. Livermore, 40 Maine, 266. And in New York it was so ruled in a case where the receipt contained no such admission, but simply an acknowledgment of having received the property, and a promise to redeliver it at a certain time and place. Dezell v. Odell, 3 Hill, 215. Later cases, however, qualify this general rule. "While it is conceded on all hands that a receiptor who conceals from the officer his ownership of the property, and suffers it to be attached as the defendant’s, thereby preventing the officer, perhaps, from attaching other property, is precluded, when sued on the receipt, from setting up property in himself ; yet, it is considered to be materially*344 different where be makes known to the officer, at the time of the attachment, that the property is his, and not the defendant’s. In such case it is held in Massachusetts that the bailee may set up property in himself, not as a bar to the action, but as showing, the officer entitled only to nominal damages (Bursley v. Hamilton, 15 Pick., 40); while in Yermont and in California it is considered to constitute a full defense. Adams v. Fox, 17 Vt., 361; Bleven v. Freer, 10 Cal., 172. See Jones v. Gilbert, 13 Conn., 507. And in New Hampshire it was held that the giving of a receipt for the property by the owner of it is no bar to an action of trespass by him against the attaching officer. Morse v. Hurd, 17 N. H., 246.”
In the present case it is alleged in the answer, in substance (as we understand it), that when the receipt was given the defendant asserted his ownership of the property. We find no element of estoppel in the case. It is not admitted in the receipt that the debtor was the owner of the property, and the record fails to show that the defendant has made any admission or done any act which estops him from asserting that he is the owner of the property.
We conclude, therefore, that the case is within the general rale above stated, and that it is competent for the defendant to show, in bar of the action, that he was the owner of the property and asserted such ownership when the receipt was given. Because he was not permitted to do so, the judgment of the circuit court must be reversed, and the cause remanded for a new' trial.
By the Gowt. — So ordered.