Bleven v. Freer

Burnett, J., delivered the opinion of the Court Terry, C. J., concurring.

There were two main grounds of defence relied upon in the answer.

The first ground relied upon is, that the plaintiff, having receipted to the sheriff for the delivery of the property, is estopped from setting up title in himself.

The receipt is set out in full in the answer, and recites that, “ Whereas, Peter Freer, sheriff of Butte county, has attached, seized, and taken into his possession, at the suit of Robert Yan FTorden v. G. W. Buckley, the following described property, the same being taken as the property of the said G. W. Buckley, at the time of said seizure and attachment, and at the time of the delivery of said property by the said sheriff to the undersigned,” describing the property; and then goes on to state that “the said property is received by the undersigned, and to be delivered, on demand or per order, to the sheriff, in as good condition and care as at present, and in default to be responsible for the same.”

In the case of Learned v. Bryant, (13 Mass. Rep., 223,) it was held, that the bailee of a sheriff might allege and prove that the property committed to him was, in truth, the property of a stranger, and not of him for whose debt it was attached. The same doctrine was held by the Supreme Court of Maine. (8 Green., [176122]; 27 Maine Rep., 345.) In the case of Janes v. Church, (12 Pick., 557,) it was decided that the receiptor, after delivering the goods to the sheriff, could maintain replevin for them as his own property. In the case of Boorsley v. Hamilton, (15 Pick., 40,) it was held, that where an accountable receipt, given for goods attached, recited that they were attached by the officer as the property of the debtor, but the goods, in fact, belonged to the receiptor, he was estopped, in an action by the sheriff upon such receipt, from setting up title in himself. In the case of Lathrup v. Cook, (14 Maine Rep., 414,) it was determined that, when the receipt of the owner of goods attached contained no admission that they were the property of the debtor, the receiptor might show, in defence to an action against him on the receipt, that the property was liis own. The receipt was as follows :

“Lincoln: ss.—May 14,1835.—Received of James Cook, deputy-sheriff, one yoke of oxen, to the value of fifty dollars, which I promise to deliver to said Cook, on demand, free of expense, the same being attached by him.”