
    *Mary Learned, Administratrix, &c., versus Thomas Bryant and Another.
    It is competent for the bailees of the sheriff, to whom he has committed goods attached by him on mesne process, to show, in an action against them by the sheriff, that such goods were not the property of the debtor; and such evidence is a good defence in such action.
    This was an action of the case, brought by the plaintiff, as admin istratrix of the estate of David Learned, Esq., deceased, late sheriff of the County of Oxford, against the defendants, upon a receipt and promise made by them, by which they acknowledged to have received of him sundry articles of the value of $ 220, which he had attached on a writ against one Nathaniel Sawtell; and which they promised to deliver to the said intestate when he should call for the same, towards satisfying the judgment that might be recovered on the said writ.
    It was agreed by the parties, that the articles mentioned in the said teceipt were returned by the intestate, as attached on the said writ, and that judgment was afterwards rendered in that suit for a sum exceeding $600; that execution issued on that judgment, which was delivered within thirty days to one Henry Jackson, a deputy sheriff of the said county, to be executed ; that the said Jackson thereupon demanded of the plaintiff, administratrix as aforesaid, the said articles ; that she then delivered him the said receipt; whereupon, and within the said thirty days from the rendition of the said judgment, he demanded the same articles of the defendants, that he might apply them towards satisfaction of the said execution ; and that they refused to deliver the same ; whereupon the present action was commenced against them.
    It was further agreed, that the defendants could prove, if such evidence was admissible, that the said articles, at the time of the said attachment and return, were not the property of the said Nathaniel Sawtell; but that they were the property of one Benjamin Sawtell; and that, upon the demand of his administrator, they had been delivered up by the defendants, and applied to the payment of the said Benjamin’s debts.
    *If, in the opinion of the Court, the said evidence was admissible, and if, upon its being given, the plaintiff could not maintain her action, she was to become nonsuit; otherwise, the defendants were to suffer judgment to go against them by default.
    Whitman, for the plaintiff,
    argued, that the undertaking of the defendants was absolute and unconditional, and it did not lie in their mouths to say, that the articles delivered to them, as mere bailees, had not been duly attached.  If the property of a stranger had been unduly taken by the sheriff, that was an affair to be settled between him and the owner. It was not for the defendants to deliver them up, and expose the sheriff to an action,
    Long fellow, for the defendants, insisted,
    that the evidence offered was competent, and furnished a complete defence to the action. The plaintiff has no right to recover in this case, unless the sheriff was liable for the article's in question. But the sheriff was answerable to no one ; not to the judgment debtor, for he had no property in the articles ; not to the judgment creditor, for he had lost nothing ; not to the real owner, because they had come to his use and possession. 
    
    
      
      
        Lyman vs. Lyman & al., 11 Mass. Rep. 317.
    
    
      
      
        Knap vs Sprague, 9 Mass. Rep. 258. — Fuller vs. Holden, 4 Mass. Rep. 498.
    
   By the Court.

It is admitted, in this case, that the defendants could prove, that the goods, committed to them by the deceased sheriff, were, in truth, the property of a stranger, and not of him for whose debt they were attached. This is certainly admissible evidence ; for the defendants were not bound by their receipt, at all events, to retain the goods. They were certainly not bound’to hold them against the demand of him who had the right. That person might have taken them out of their hands by replevin ; and they were under no obligation to resist a claim at the expense of a lawsuit, if they were willing to incur the peril of surrendering them. The sheriff was not liable to an action for not levying upon these goods ; and we think the defendants not liable to the sheriff upon their receipt. * Under these circumstances, it being admitted, that the property of the goods was in Benjamin Sawtell, whose administrator formerly demanded the same of the defendants, and has since disposed of them in discharging the debts of the rightful owner, the plaintiff has disclosed no sufficient . cause of action, and she must, therefore, be called.

Plaintiff nonsuit

[Denny vs. Willard, 11 Pick. 519.—Fisher vs. Bartlett, 8 Greenl. 122.— Ed.]  