The question in this case is, whether the re-ceiptor for the property attached, who was released by the deputy sheriff that made the attachment, was a competent witness for the defendant. Ordinarily such a release would remove the interest, which the witness would have in favor of the defendant. But the receipt had been approved by the plaintiff’s attorney and accepted by him, and it was produced in Court by him in the presence of the witness, who must have been informed by the proceedings in Court of the claim of the plaintiff to the receipt before he received the release.
The attorney, as such, had authority to approve of the receipt. Jenney v. Delesdernier, 20 Maine, 183, The placing of such receipt in the hands of the creditor’s attorney, to be prosecuted for his benefit, is an equitable assignment of the contract. Clark v. Clough, 3 Greenl. 357. The receipt *49taken by the officer is a substitute for the property attached, the possession of which he relinquishes. When he does so without the consent of the creditor, he is responsible for the property — but when the creditor authorizes him to take the receipt, he cannot be liable for not retaining the property. And in such case unless the creditor has a right to bring an action upon the receipt in the name of the officer, he would be without any remedy so far as relates to the releasing of the property. It is true, that before the creditor can claim an interest in the receipt, the transaction between him and the officer must amount to a contract of assignment. But it is not necessary that it should be made in direct and positive terms. It may be implied from such acts as clearly indicate the intention of the parties. The authority given to take the receipt, and the consequent discharge of the officer from his obligation to retain the property, and the delivery of the receipt to the creditor and his acceptance of it, would imply a transfer of it from the officer to the creditor. In the present case, the approval was written upon the receipt at the time it was taken, and it was then accepted by the plaintiff’s attorney. These acts must have been understood and intended by the parties to constitute an assignment. And such would be the inference to be drawn from them. The action of the officer is adopted by the creditor for his OAvn benefit. Farnham v. Gilman, 24 Maine, 250.
The assignment of the receipt made it the property of the plaintiff, and the officer could not discharge it, nor could he release the receiptor, who appears to have had full knowledge of the assignment before he received the release. The re-ceiptor, therefore, was interested to defeat the action, and was not a competent witness for the defendant.
Exceptions sustained and a new trial granted.