Parker v. Warren , 84 Mass. 187 ( 1861 )

Dewey, J.

The right of the plaintiff to maintain this action seems very clear, upon the application of well settled principles to the case.

1. The action is properly brought in the name of the officer to whom the receipt for the property was given, and to whom the promise to keep and deliver the same was directly made. The delivery of attached goods to a third person as a receiptor is solely an affair of the officer, and is not done by virtue of any statute provision on the subject. The officer’s duty is to keep them in his own possession, unless the attachment is dissolved, upon an application for that purpose, by giving bond with sufficient sureties in the manner stated in Gen. Sts. c. 123, $ 104.

2. The officer must be liable over to some other person for the property, to entitle him to maintain an action against the receiptor of personal property attached. In the present case, there was no liability to the debtor, inasmuch as the property was, upon taking the receipt, passed over to him, and has been since sold by him. But the officer is also responsible for the property attached to the creditor, or plaintiff in the suit in which the attachment was made; and in the present case the assignee of the debtor succeeds to the rights of the creditor under certain provisions found in our insolvent laws. This attachment was continued under the provisions of Sts. 1841, c. 124, § 5, and 1855, c. 66, which authorize such continuance in proceedings1' of a compulsory character, as well as in those which are commenced upon the application of the debtor himself. The assignee, having obtained from the court of insolvency an order that the lien created by the attachment made by the officer should continue, and the suit be prosecuted by the assignee for the benefit of the creditor, stood in the same relation to the attaching officer, in reference to this attachment, as the original plaintiff; and the only further inquiry is, what would .be the relation and liabilities of the officer, and the receiptor to the officer, in such a case. The officer was made responsible for the property by the placing in his hands of the execution which issued upon the judgment within thirty days from the judgment. What then was necessary to be done by the officer to charge the receiptors ? It was held in Webster v. Coffin, 14 Mass. 196, That where the receiptor had suffered the owner of a ship, which was the property attached, to resume his possession, and take her to sea, the officer’s right of action accrued without any demand. In the present case the property was not only delivered into the possession of the debtor, but was actually sold by him before the judgment was rendered. But this case is more like that of Hodskin v. Cox, 7 Cush. 471, where the form of the receipt for the property was very similar to that in the present case, both having the peculiarity of containing a provision that if no demand should be made on the receiptor, he should, within thirty days from the rendition of judgment in the action, redeliver all the described property, at a certain place named. And the court there held, that no demand was necessary, and that it was sufficient if the officer had the execution in his hands, and was ready to receive the property and levy thereon. The fact of such execution having been duly placed in the hands of the officer was fully proved by evidence other than the officer’s return. The officer’s return was therefore only necessary to show his continued holding of the execution and his readiness to levy the same upon the property, or, to take the rulé stated by the presiding judge upon the trial of the present case, to show that he made reasonable effort within the thirty days to levy the same upon the property attached and receipted.

.Without expressing any opinion whether anything more was necessary to be shown than that the officer had the execution in his hands, and was ready to receive the property and levy thereon, in either aspect the return of the officer was proper to that extent, as within the legitimate scope of an officer’s return. But it would not be competent evidence to prove that he had made a demand on the receiptor, if such demand was necessary, as that would be a matter he must prove by other modes than his own return on the execution.

To the extent that the officer’s return was competent as evidence, his amended return was admissible in evidence, and to this extent no objection exists to the court giving leave to the officer to amend his return.

Exceptions overruled.