Silas B. Sibley vs. Joseph Story, 8 Vt. 15

The opinion of the court was delivered by Redfield, J. The only question arising upon the bill of exceptions is, whether trover be the appropriate remedy in this case. There can be no doubt assumpsit will lie, upon such a receipt in the name of a deputy sheriff even, when so expressed in the receipt.

The bailing of property attached on mesne process to a receipt man, so common in our practice, is not so far an official act of the attaching officer, that he is bound to make the bailment on request of the debtor; and still it is so far official in its character, that the sheriff may claim to have made the bailment through his deputy, and may maintain an action for the non delivery on request, in má-awn name. — Davis vs. Miller, 1 Vt. Reps. 9; Spencer vs. Williams et al. 2 Vt. R. 209.

There can be as little doubt that the sheriff ór his deputy orany other officer, making an attachment, whether they^ave the actual custody, or have bailed the property to a receipt man, or have only a constructive possession by operation of law, as is the case with those articles of personal property not required by our statute to be removed, in order to constitute an attachment, e. g. hay, grain, 8to., (Lowry vs. Walker, 4 Vt. R. 76; same case reconsidered, 5 Vt. 181) may sustain trover against any one guilty of converting the property.

It is indeed a well settled rule of common law, that a mere depositary of goods is liable, in trover, for any abuse or even use of them, and equally for refusal to deliver the thing bailed to the bailor on request. But a bailee for use is not liable in trover for a mere abuse of the chattel, but the appropriate remedy is trespass on the case or assumpsit. — 1 Saund. 47, No. 1; 1 Ch. R. 650. Butin this case if he refuse to redeliver the thing bailed or put it to another and different use from that for which it was bailed, he is guilty of a conversion and liable in trover.

A nice distinction is taken in the books between mis-feasance and non-feasance by the bailee. In the former case the bailor may, at his election, bring assumpsit case or ver, but in the latter case trover will not lie. After the bailment is determined either by its own limitation or the act of the bailee., the law considers the several species of bailment as resulting in a naked deposit, and trover will always lie after demand and refusal; and trespass even, when the bailment is determined by the bailee destroying the subject of the bailment.

These principles are too well settled and too familiar to require discussion. — Story on B. 74, — 84, 93, 1 Chitty on Pl. In this case, if the plaintiff had merely delivered, the’ property to the defendant for safe keeping, it would hardly be contended he could not sustain trover against him for converting it to his own use. And the common receipt taken in these cases is not intended to vary the obligation resulting from the relation, and in fact does not.

In such case it has always been held here that the officer might bring trespass or trover against a stranger who wrongfully interfered with the property, while in the possession of the receipt man. — Bedlam, executor, vs. Tucker, 1 Pickering 395; Sudden vs. Lovitt, ubi infra; Gibbs vs. Chase, 10 Mass. Rep. 104; Gates vs. Gates, 15 Mass. 310; Brownel vs. Manchester, 1 Pick. 389. It has been decided in Massachusetts that the receipt man is a mere servant of the attaching officer and has no such interest as will enable him to maintain an action of trespass or trover against a mere stranger.— Waterman vs.

Robinson, 5 Mass. 303; Sudden vs. Lovitt, 9 Mass. 104; Ib. 265; 14 Mass. 217, Commonwealth vs. Morse. But although it' be conceded that the doctrine^(Barrows vs. Stoddard, 3 Conn. 160) 'that the receipt man may bring trover or trespass for any wrong done by a stranger to the property while in his possession, or that of his servant, is more in analogy to the settled principles of the right and duties of bailees in other cases, which is undoubtedly true, still, it must be admitted that the cases in Connecticut, (Burrows vs. Stoddard,) and also in New York, (Mitchell vs.

Hinman, 8 Wendell-) and especially the Mass. cases cited above treat the possession of the receipt man as being the possession of the officer. It is well settled that the mere depositary of goods has no property in them. — Hartrop vs. Hoare, 3 Atk. 49; Story on bail-ments, 72, 73; Isaac vs. Clarke; 2 Bulstrode R. 306, 311. But it is equally clear that the bailee, under such circumstances, may maintain trover against a mere_stranger. — Same cases and Booth vs. Wilson, 1 B. and Ald. 59: Sutton vs. Brick, 2 Taunt. 381.

The receipt man has a mere naked custody and no property in the thing receipted, any more than any other depositary. — Norton vs. Rofle, 8 Cowen 137. The officer has a right to resume the actual custody at any time. Pierson vs. Honey et al. 1 D. Chip. 51; Beach vs. Abbott & Blodget, 4 Vt R. 605; Rood vs. Scott et al. 5 Vt. R. 263; Philips vs. Bridge, 11 Mass. 242.

In short, the receipt man is at most the temporary bailee of the property, with the right to use it by consent of the debtor, but liable at any time to be called to account and guilty of converting the property by any abuse or wrongful use or refusal to deliver on request. These principles are too well settled by repeated adjudications, sub silcntio indeed, and a uniform course of practice for too long a time to be now brought in question. — Bedlam vs. Tucker; Lockwood vs. Bull, 1 Cowen 322. In New York the form of action is generally trover.

It has been brought in this state as often, it is believed, as any other form of action in cases of this character. The same is true of Connecticut and Massachusetts. And we here decide that trover is the appropriate remedy. But it is attempted to liken this to the case of a bailment with a power-of sale. And this is attempted to be inferred from the stipulation of defendant, being in the alternative, and not fixing the value of the property as the measure of liability, but the amount of the debt and costs. This does not vary the case.

In no sense can this be construed a “power of sale.” The plaintiff could confer no such power. If he could have done, it is in vain to infer one from the terms of the contract. No such power is expressed or was intended to be, so that any analogy, which was attempted to be shown between this and the case of Sergeant vs. Blunt, 16 Johns. 74, or 3 Taunt. 117 Dufresne vs. Hutchinson, where it was held trover, will not lie against an agent for selling goods intrusted to him for salé, below the price at which he was required to sell by his instructions, wholly fails.

It is believed that this receipt is in the form in which many years since it was most common to express the liability. It is intended to express, in definite terms, the extent of defendant’s liability to plaintiff. It was natural defendant should wish it so draughted. It was but reasonable plaintiff should consent to such a limitation, as long as the defendant was the friend of the debtor, and the property would doubtless go immediately into his possession, so that plaintiff would hardly be called upon to take any indemnity against a possible liability over to him. There being no error in the proceedings below.

Judgment is affirmed.