44 A. 491 | N.H. | 1895
Upon the writ in this suit the sheriff made an attachment of personal property. One Hoyt receipted therefor at the request of a third person who claimed to own the property attached, and to whom Hoyt, the receiptor, delivered it. The officer made a demand upon the receiptor which was refused. The date of the receipt and demand is not stated, but it is assumed that both were on the day of the attachment. The suit was duly entered in court, but within three months from the date of the attachment the defendant filed a petition in insolvency, and has been discharged by the probate court. The plaintiff is a resident of this state, but has not proved his claim in insolvency. When the assignment was made the property attached and receipted for was turned over to the assignee, who sold it. The insolvency and discharge of the defendant is suggested, and the defendant moves to dismiss the action. The plaintiff claims the right to prosecute the action to judgment and hold the receiptor upon the receipt given for the property, but concedes that the discharge, if pleaded, as an answer to the action so far as a personal judgment against the defendant is concerned. Batchelder v. Batchelder,
The claim of the plaintiff is that he is entitled to a judgment in order to enable him to prosecute a supposed remedy against the receiptor. The receiptor is not a party to this action. He will not be bound as to his liability upon the receipt by any conclusions to which we might come in that respect in this case; but since, if the claim of the plaintiff is well founded that he has a remedy against the receiptor, which would be lost if the present action were dismissed, justice would require some order to preserve those rights, while if the conclusion is that the plaintiff has no remedy against the receiptor there is no occasion for any judgment except that of dismissal, we have considered that question.
The contract of the receiptor is a special one. He in no sense becomes a surety or guarantor for the original debt or liable to the creditor therefor. The contract of the receiptor is that he has received for safe-keeping certain attached property which he agrees to deliver upon demand. In defence to a suit upon the receipt, the receiptor may show that the property has gone to a person having a better title. Clement v. Little,
Our conclusion is that the insolvency proceedings having dissolved the plaintiff's attachment, and the attached property having gone into the possession of the assignee, the receiptor is relieved from liability upon the receipt. The same conclusion is reached in Massachusetts and in Maine. Wright v. Dawson,
Case discharged.
All concurred. *326