Smith v. Wadleigh , 18 Me. 95 ( 1841 )

The opinion of the Court was drawn up by

Weston C. J.

The direct promise made by the defendants, upon the receipt of the property attached, was, to re-deliver it to any officer, authorized to receive it. The plaintiff, at the time of the demand proved in the case, was the officer entitled to receive the property; and brings himself, therefore, within the express terms of the contract.

But it is insisted, that the consideration for the promise, moved from Burr, the deputy marshal; and that he is the promisee named. The defendants made the promise to him in his official capacity. They received the property from him in the same capacity ; and their whole engagement is based upon proceedings, in which Burr acted as the plaintiff’s deputy. That deputy sheriffs are the servants of the sheriff, and that he may interfere, and control all attachments, whore disputes arise, is declared by the Court, in Perley v. Foster, 9 Mass. R. 112. And by the same case it was held, that the receipter was the mere keeper for the officer, in whom the special property continued. In Watson et al. v. Todd et al., 5 Mass. R. 271, Parsons C. J. says, that deputies “ are all servants of the sheriff, and the possession of any deputy, by yirtue of an attachment, is the possession of the sheriff.”

In legal contemplation, then, the defendants received the property of the marshal, through his servant and deputy, Burr; and the contract, in its legal effect, becomes available to the marshal, if he elects to prosecute in his own name, it constitutes no legal objection to this course of proceeding, that the deputy might also have maintained the action. Cases are not uncommon, where an action may be brought, either by the party, legally or beneficially interested, or by him, to whom a promise is directly made. Arnold et al. v. Lyman, 17 Mass. R. 400.

This point has been directly decided, upon full consideration, in Davis v. Miller, 1 Vermont R. 9. The Court there held, that the sheriff, as the principal and superior of the department, may acquire rights, growing out of other transactions than the performance of acts strictly official. And that, “ in the common case of a bailment, by a deputy sheriff, of property attached by him, to a person knowing the situation of the property, and undertaking merely to restore it on demand, the sheriff may claim to have made the bailment himself, through the medium of his servant,” and may maintain an action thereon, in his own name. And in Baker v. Fuller, 21 Pick. 319, the plaintiff, as sheriff, sustained an action against the defendant, as receipter of property, attached and delivered to him by a deputy of the plaintiff. That case is not distinguishable, in principle, from the one before us. r

We are of opinion, that the objection taken to the maintenance of the action, in the name of the plaintiff; is not legally sustained.

■ A demand upon one of the receipters, might have been sufficient. Holbrook et al. v. Holbrook, 15 Maine R. 9. Bat here a demand was made upon all. It thereupon became their duty to have re-delivered the property attached, according to their contract. What was said by Brown, did not amount to this. The other defendants, when the property was demanded, at the place where it was attached, neither re-delivered it, nor made any offer or movement to do so; but Wadleigh, one of them, in the presence of the others, declared that they had disposed of it. The facts in the case fully warrant the instructions of the Judge, and the finding of the jury.

Judgment on the verdict.