Wentworth v. Leonard

Shaw, C. J.

This case, which is assumpsit on an accountable receipt for furniture, given by the three defendants to the plaintiff as an officer, for articles of property attached by him on mesne process, as the property of one of them comes before the court, after a verdict for the plaintiff, on exceptions taken by the defendants.

An objection is now taken, that this action cannot be maintained, without proof that the execution was delivered by the plaintiff to the officer within thirty days after judgment, and that the court ruled, that the action could be maintained, though no such proof had then been given. But we think this question is not open here; because no such objection was taken at the trial, so that the judge’s attention was not directed to that point.

The execution of the contract was admitted, and the time of the rendition of judgment was proved, but no demand upon the defendants to deliver the property was proved. When it was objected, that upon this evidence, the action could not be sustained, we think the judge was called upon, not to pronounce a judgment on the whole case, which he could not with propriety do in that stage of it, but to put a construction upon the instrument, and decide, whether, upon its terms, the defendants were liable without a demand. Such a question was fairly raised. The defendants, by the instrument, in the first instance, stipulated to deliver up the goods, on demand; and if the contract had stood there, no breach of it could have ta ken place without a special demand. But in a subsequent clause it was stipulated, that they should deliver them within thirty days after judgment, whether demanded or not. We think that all the judge was called on to decide, in that stage of the case, was, that on the true construction of the instrument, the defendants were liable without a special demand. Had the objection then been made, that the execution had not been delivered to the officer within thirty days, the judge might have decided that it was necessary and the proof might have been supplied, or the plaintiff might have voluntarily offered it, to preclude the question ; or, the judge might have ruled that it was not necessary, and then the question would have been open to the defendant on the exceptions. But this was not done; the question is not now open ; and it is unnecessary to express any opinion upon it.

In any other view of this objection, than as a question upon the construction of the contract, and whether there cannot be a breach without demand, it would be a request to the judge, in the nature of a motion, to order or rather to recommend a nonsuit, on the ground, that the plaintiff upon his whole evidence was not entitled to recover. This a judge may do if he is of that opinion, and it is often useful, in order to shorten a trial; and if he does so, it is open to exception on a report of the evidence. But if he is of a different opinion, if he thinks there is evidence to go to the jury, and declines ordering a nonsuit, it is no ground for exception.

Upon the matter of law, on the construction of the instrument, this court are of opinion that the decision of the court of common pleas was correct, and that by force of the last clause in the instrument, the defendants undertook to redeliver the attached property to the plaintiff, within thirty days of the rendition of judgment, though no demand should be made.

The other questions arose upon the matter offered by way of defence, the proof of which was rejected, because the judge was of opinion, that the facts, if proved, would not constitute a defence. The defence offered was in effect, that the goods had been taken from the defendants by a person having a title paramount to the attachment, which they could not resist. The facts proved, or to which proof was offered, were these: That long prior to the attachment made of the goods of Cadmus, by the plaintiff, Cadmus had mortgaged them to Robinson ; that Cadmus, with two other persons, gave the officer the receipt in question; that thereupon the goods went back into the possession of Cadmus; that after this, to wit, in March, 1847, Robinson took possession of them; and that afterwards, and before judgment in the plaintiff’s suit, on which they were attached, Cadmus released his right of redeeming them to Robinson.

We concur with the court, that these facts afforded no ground of defence. The goods were well attached by the plaintiff, notwithstanding the. mortgage of them to Robin son; the plaintiff, by force of the attachment, could hold them against every body but the mortgagee; and against him too, until he notified his debt to the officer, which he never did. If the goods remained bound by the attachment, the obtaining possession of them by Robinson, and the release to him by Cadmus, worked no forfeiture, and constituted no title paramount. If Robinson, finding the goods in the hands of his mortgagor, had a right to take possession of them, it was not because he had a title by his mortgage paramount to that of the plaintiff by his attachment, but because, by a redelivery of the goods into the possession of the debtor, the attachment was dissolved, and the mortgagee was remitted to his original title, as if no attachment had been made.

And this brings us to the only remaining consideration. It appears that after the attachment, the goods were restored to the possession of the debtor, upon a receipt given by him and two others, stipulating to have them forthcoming on th judgment.

Now, if by this proceeding the attachment was dissolved, as we suppose it was, then the defendants were not bailees and servants of the officer, to keep the attached goods, as goods in the custody of the law; but they were original contractors, bound, at their own peril, to have the goods forthcoming according to their undertaking.

But it is contended, that the goods still remained bound by the attachment; that the defendants were mere bailees and servants of the officer; and that when Robinson took the goods under a claim of right, the defendants could not resist, and could have no action to maintain their possession; because it has been adjudged, that the receipters of attached property in the custody of the law have not such +itle or interest, as will enable them to maintain an action.

It would be equally true, that they could maintain no action against a mere wrong-doer, and the argument proves too much. But suppose, for the sake of the argument, that the attachment was not dissolved ; that the goods remained in the custody of the law; that the defendants were mere bailees and servants; then the title and special property would Have been in the plaintiff as the attaching officer, and it would have been the duty of the defendants, as such tiailees and servants, to give immediate notice to him, that he might vindicate his and their rights by an action : not having done so, whether the attachment was or was not dissolved by the redelivery, we are of opinion, that the defendants were liable on their obligation. Exceptions overruled.