
    R. C. Stockton v. T. R. Hyde.
    The sheriff holds property seized under attachment for the benefit of whom it may concern. If the attaching creditor succeeds in his suit, the rents and profits dyriag the attachment belong to him to the extent of his claim, and he may recover the same in a direct action against the tenant if he has not paid the rents to the sheriff.
    from the Fourth District Court of New Orleans, Strawbridge, J.
    
      Alexander T. Steele, for plaintiff,
    contended : Hyde collected $3320 rents of lot (? apd part of 10, from the 6th day of June, 3,842, to 1st April, 1849 ; he was not the owner of those lots ; on the contrary, they were .seized in 1841 by Stockton, under an attachment which was decreed by final judgment of this court to be good against both Craddick and Hyde. Now, the fruits of property belong ,to its owner. C. C. 493. Hyde was not owner, and therefore was not entitled to them ; he has received that which belonged to another; he is bound •to restore it, C. C. 2279. His liability to pay is fixed by the existence of the facts we have stated; the only question which remains is, where shall he pay it ? or to whom is he liable ? Ordinarily, compensation for the use of property ,or fruits are d.ue to its owner ; but there is an exception to this rule when property is under seizure; then the fruits and revenues belong to the person making the seizure, (C. C. 457,) to be credited, of course, upon the debt for which a seizure is made ; or, in other words, a seizure of property is aseizure .of the fruits and revenues thereof; and a seizure of this property under an attachment took with it the rents; it must be apparent then, that Hyde owes the sum of $3320 for the rent of this property, and that this sum, when paid, must go to Stockton, until the amount of his judgment against Craddick shall be satisfied.
    The petition sets forth the amount of that judgment, the amount satisfied, and the value of every paificle of property which was bound for its payment, and shows that if we get all, and what we claim from Hyde, there will still be a large amount of the judgment unsatisfied, and which must for ever remain so ; consequently, the proceeds of every portion of the property seized (whoever may be the proper person to grant acquittance,) must be paid to Stockton alone, in satisfaction of the judgment against Craddick. So far as Mr. Hyde is concerned, the judgment of the co.urt, i.n case of his opposition to the sale of the property, .takes away all power of making a contest in regard to the fruits of lots 6 and part of 10. By that judgment Stqckion’s attachment was sustained, and Hyde’s claim to the lots disallowed, or it was held, that Stockton’s seizure of the property in Januaiy, 1841, was good, especially against Hyde; now, the fruits and revenues of the properly belong to its owner, (who in this case is the seizing creditor,) and a decision in regard to his right to the property is final as to the revenues of the property accruing during the litigation. As to the right which Stocktonhaa, either directly or indirectly, to claim this sum of money from Hyde, there can be no doubt in the minds of the court.
    But it was urged in argument in the lower court, that if Hyde owes the amount for which he was sued, he owes it to the sheriff as depositary and not to the plaintiff; and if the plaintiff has rights, they are against the sheriff as an unfaithful depositary, and not against Hyde. This argument might answer at common law, where the plaintiff is bound down by certain forms of sueing, and can go no other way but in that marked out for him. Here the practice, or law of practice, is altogether different; here, as in courts of equity, it is not necessary for a man to show that the legal title of a thing or chose in action is vested in him, in order that he may have a right to, for, or upon it; but the veiy existence of a right gives authority to the party holding that right to claim its enforcement from the competent tribunals. Stockton has undoubtedly shown, that he had a right to have this debt for the rent which was collected by Hyde appropriated to the payment of his judgment against Craddick ; and until that judgment is fully satisfied, he has a right to claim that the property attached should be applied to its payment.
    The sheriff has no personal interest in this matter; his only interest is as depositary; and because he is responsible as depositary, he may sue for the property given to his care; otherwise, he could not sue; and even when he sues he cannot obtain a judgment in his own favor, but only a judgment requiring that the property or debt be applied to pay the judgment of Stockton v. Craddick. In fact, Stockton is the more suitable party to sue, and he has at least a clear right to do so. See Pothier Traité du Contrat de Depót, 91, 92, 93, 99.
    
      Craddick also has rights in this matter : he may sue, but it is not for money to be paid to him, but to have the property attached and its proceeds applied to the satisfaction of the judgment of Stockton v. Craddick. Stockton, Craddick and the sheriff are each interested, by their relative positions, in seeing the property applied to pay the judgment of Stockton v. Craddick ; they each have aright to the aid of a court of justice- to enforce this payment; but in sueing, Stockton must show that his judgment is unsatisfied ; the sheriff must show that he will be responsible for the loss of the property; and Craddick, being the residuary, has a right in all cases to sue.
    In this case the sheriff, who had charge of the property, and neglected to collect the rents, has gone out of office and is no longer a depositaiy; and, although his responsibility continues so far as to oblige him to pay damages, it is with me a matter of great doubt, whether he could collect this sum from Hyde even if he proved the facts we have set forth, unless he also showed that he had paid the damage to the parties entitled to claim it. It is also a matter of doubt, whether the present sheriff has the authority other than that conferred by the fi. fa. to collect rents which his predecessor failed to collect; his right to collect the rents at all is derived only from his responsibility as depositaiy, and fre is not responsible for those rents which it was not his duty to collect, and which were not paid to him by his predecessor. Stockton, beyond a doubt, has a right to claim that the rents collected by Hyde be paid to the satisfaction of his judgment; and we think we can come boldly into court, and claim that by a direct action which we can claim by a circuity of action. There is an old maxim, that “ the law abhors a circuity of action,” which we invoke here in our favor.
    
      Benjamin and Micou, for defendant,
    contended : The suit is for rents of property, which the plaintiff alleges, he attached for debt of Craddick, and which eventually was sold for the debt. The rents claimed are said to have accrued between the attachment and the sale, and the allegation is, that the defendant was all that time wrongfully in possession. The defendant excepted, that no ground of action was shown in the petition ; and the exception being maintained, the plaintiff appealed.
    In support of the opinion of the lower court, we submit : 1st. That the plaintiff does not pretend to have been owner of the lots in question during the time the rents accrued. 2d. That as attaching creditor, he could have no right of action. As plaintiff, he has only to look to the sheriff. If the sheriff neglected his duty, and permitted a third person to hold property which he ought to have held and administered, then the plaintiff has his action against the sheriff, but not against the defendant, with whom he had no privity or contract.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for the recovery of the amount of certain rents of lots, which the plaintiff bad attached as the property of Craddick, and which was sold under tho judgment which he obtained in the suit of attachment, The rents are said to have accrued between the attachment and the sale under execution. It is alleged, that under a pretended sheriff's sale, the defendant, pretending to have acquired title and possession, received the rents and revenues of said lots, and prevented the sheriff and the petitioner from collecting and receiving them.

The plaintiffs petition was dismissed in the court of the first instance, on the ground that the petition disclosed no cause of action; and on the appeal it is contended, that the plaintiff, as attaching creditor, has no right of action against the defendant, but that his remedy is exclusively against the sheriff. By the service of the attachment, the sheriff was in possession of the lots for the benefit of whom it might concern — the attaching creditor or the other-parties in interest. The rents accruing from the possession, it appears to us, belonged to the party for whose benefit the possession was held. Code, 457. C. P. 656, 658. The debtor of the rents owed the sheriff merely as the bailee of this party, whose right was established by the judgment on the attachment. The attaching creditor is not obliged to take his recourse against the sheriff, who may not be, perhaps, in default, but has his direct action against the defendant, as the receiver of money belonging to him.

The judgment of the district court is reversed, and the case remanded for further proceedings ; defendant paying costs.  