
    Francis W. Fitch vs. Joseph L. Chapman and another.
    Property was attached, and delivered by the officer to a receiptor. Judgment was afterwards rendered against the debtor in the suit, but the lien of the attachment was allowed to expire before the execution was placed in the hands of the officer. The officer afterwards demanded the property of the receiptor, and on his refusal to deliver it brought a suit on the receipt. The receiptor claimed in defense that he was the owner of the property, by a bill of sale from the debtor made before the attachment, and the debtor testified on the trial that the property belonged to the receiptor. Held, 1. That the defendant was not entitled to a charge that *beeause [ *258 ] the debtor had so testified, the jury should find for the defendant, since the question of the credit to be given to the testimony was wholly one for the jury. 2. That the question for the jury was whether the property in fact belonged to the debtor or to the defendant. 3. That this was a question wholly between the debtor and the defendant, and not affected by the fact that the sale to the defendant was made to defraud creditors.
    Where property attached has been delivered by the officer to a receiptor, on his promise to redeliver it on demand, and the lien of the attachment has expired, the receiptor is still bound to deliver the property on demand to the officer, unless he is himself the owner of it, or has already delivered it to the owner, or has authority from him to hold possession of it.
    Assumpsit, on a receipt given by the defendants to the plaintiff, as deputy of the sheriff of New London county, for certain property attached by the plaintiff in a suit against one Maynard. Judgment had been rendered against Maynard in the suit on which the property was attached, on the 8th day of April, 1858, but the execution issued thereon was not placed in the officer’s hands for service until the latter part of June following, and no demand was made by the officer upon Maynard on the execution, nor upon the defendants for the property, until the 6th day of July. The lien of the attachment expired on the 8th day of June.
    The defendants claimed and offered evidence to prove that the property, at the time of the attachment, was not the property of Maynard, but of the defendant Chapman, and Maynard himself testified in the case that the property was not his, but belonged to Chapman. The plaintiff claimed and offered evidence to prove that the property belonged to Maynard, and that the claim of Chapman to it was only by a pretended sale made by Maynard before the attachment for the purpose of keeping it from his creditors, and was therefore fraudulent and void, and that Chapman took the bill of sale of the property for the purpose of assisting him to defraud his creditors; and the plaintiff thereupon requested the court to charge the jury that, although the lien of the attachment was lost at the time of the demand, yet, if the property was in fact the property of Maynard and not of Chapman, he was entitled to recover. The defendants requested the court to charge the jury that, as the lien [ *259 ] of the *attachment had expired before the demand was made by the plaintiff upon Maynard on the execution, '!■ upon the defendants on the receipt, and as Maynard himself had testified that.the property was not his but Chapman’s, the plaintiff could not recover. The court however charged the jury in conformity with the request of the plaintiff. The jury having returned a verdict for the plaintiff the defendants moved for a new trial for error in the charge of the court.
    
      Lippitt and Crocker, in support of the motion.
    An officer can not recover on a receipt taken by him for property attached, unless he is liable over to some other party for the value of the property. He*is but a bailee, holding the property for a certain purpose. When it is no longer needed for that purpose, he has no claim upon it. Drake on Attachments, §§ 353, 354, 370, 388, 389. The receipt for property attached, though in terms an absolute promise to return the property or pay its value, yet is in law only a contingent undertaking, to return the property if required for the purposes of the execution, or for redelivery to the defendant in the suit. Story on Bailments, § 126. Clark v. Gaylord, 24 Conn., 488, 9. Here the property had ceased to be held by the attachment, and no lien whatever existed upon it. If therefore the plaintiff had any claim upon it, it was upon the ground of his liability to account for it to Maynard, the debtor in the suit on which it was attached. But we say that he could not be liable to Maynard, because Maynard had conveyed it to the defendant Chapman, and had expressly sworn on the trial that it belonged to Chapman. .It is true that the jury have found, under the charge of the court, that the property was Maynard’s and not Chapman’s, but it is manifest that they so found because they regarded the sale to Chapman as fraudulent against creditors ; and what we except to in the charge is, that the court allowed the jury to regard the question of Chapman’s title as depending on the character of the sale in this respect. There being no attachment lien upon the property, and consequently no rights of creditors intervening, it was wholly a question [ *260 ] between Maynard and Chapman, and it is of no consequence what was the character of the sale so long as it was good between themselves, and in this view the testimony of Maynard that the property was not his but Chapman’s should have been treated as decisive, since it would estop Maynard from claiming the propertv as his, and constituted an ample authority for the retention of the possession of the property hy the defendants, which was all that was necessary. It is enough that the property was in the possession of the defendants by the act and with the consent of Maynard.
    
      Willey and Brandegee, contra.
    The officer may maintain his action on the receipt in all cases where he is, or may be, liable for the property receipted, and it is immaterial whether that liability is to the attaching creditor, or to the defendant in the original suit, or to a subsequent attaching creditor. Clark v. Gaylord, 24 Conn., 489. Story on Bailments, § 126. Reed v. Touseley, 1 Root, 383. Drake on Attachments, §§ 353, 356. Cooper v. Mowry, 16 Mass., 8. The only legal excuse for the non-delivery of the receipted property is, that the property is in the hands of the true owner, or has been legally applied for his benefit. Clark v. Gaylord, supra. In this case the jury have found that the property attached and receipted was the property of Maynard, the defendant in the original suit, and not the property of Chapman; and the property remains in the hands of Chapman, who has never acquired title from the true owner. Admitting that the officer is no longer liable to the plaintiff in the original suit, yet this fact does not discharge him from liability to the true owner, unless the property has been delivered into the true owner’s hands, or, at least, unless he has discharged the officer from liability. Phelps v. Landon, 2 Day, 370. Parsons v. Phillips, 1 Root, 481. Jones v. Gilbert, 13 Conn., 519. As between Chapman (who is found not to be the owner of the property receipted) and the officer, it is no excuse for him to set up, that more than sixty days had elapsed between the time of the judgment and that of the demand; he is bound at all times, under this receipt, *to deliver the property [ *261 ] when demanded, unless the property, since the sixty days have elapsed, has been delivered to the true owner. And it does not affect the officer’s right of recovery that Maynard has testified that the property belonged to Chapman and not to himself. This was mere testimony, and the jury did not believe it. It was not for the court to instruct the jury, as a matter of law, that this evidence was decisive. The court properly submitted the question to the jury as one of fact, on all the evidence, whether the property belonged to Maynard or to Chapman.
   Stokes, C. J.

The plaintiff, being a deputy sheriff, had attached the goods in question in this case as the property of Maynard, on an attachment against him at the suit of one of his creditors, and delivered them,to the defendants on their promise to redeliver them to the plaintiff on demand. If the goods were the property of Maynard, the plaintiff would be liable to the attaching creditor for their value, if the execution issued on the judgment recovered bv him had been seasonably placed in the hands of the plaintiff or some other proper officer for service, and the defendants refused to redeliver them to the plaintiff so that they might have been sold and appropriated for the benefit of the creditor on the execution ; or, if the execution was not so placed in the hands of an officer for service, in which case the lien created by the attachment would be lost and the creditor would cease to have any claim on them, the plaintiff, if he should refuse to deliver them to Maynard, their owner, would be liable to him for their value. If, however, Maynard was not the owner of the goods when they were attached, although the plaintiff would be a tort-feasor as to the real owner of them and liable to him in trespass for taking them on the attachment against Maynard, yet, if the plaintiff delivered them to the defendants on their promis,e to redeliver them on demand to him, the defendants would be liable to him for their value on their refusal to do so, unless the defendants were themselves in the first instance the owners, and so had a right to retain the goods, or had since clothed themselves with the title [ *262 ] of the *real owner, or held them for him or by his authority, or unless they had in fact delivered them up to the real owner. These principles are settled in the case of Clark v. Gaylord, (24 Conn., 488,) in which the reasons on which they rest are fully stated. It being on the trial below claimed by the defendants and not denied by the plaintiff, that the execution issued on the judgment in the suit on which the property in question was attached, was not levied on the propertv, nor delivered for service to the plaintiff or any other officer, within sixty days after the judgment was rendered, the lien created by the attachment had expired when the plaintiff demanded the property of the defendants; and therefore the plaintiff was not entitled to recover on the. ground that it was liolden to be applieii on the execution, or that he was liable to the judgment creditor for or on account of it. The lien of the creditor being thus removed, the only question which remained, and on which the’ case should be determined, was, whether, when the plaintiff attached the goods, they were the property of Maynard, or of the defendant Chapman, as between themselves. It was conceded that, prior to the attachment of them, they had been owned by Maynard, and that he continued to be such owner, unless he had before the attachment sold and conveyed them to Chapman. If they had not been so conveyed by him, he of course remained the owner, and the plaintiff was bound to return them to him, and for this reason the plaintiff was entitled to recover of the defendants. If, however, they had been so conveyed, then, as they were already in the possession of Chapman, to whom they belonged, by delivery from the plaintiff when he took the receipt for them, the plaintiff was not liable to Chapman for them, and therefore could not recover in this suit. The question whether the goods were the property of Maynard or Chapman was properly submitted to the jury as the one which should govern their verdict. The decision of that question, as the claim of the attaching creditor was out of the way, would depend on whether Maynard had in fact sold the property to Chapman, irrespective of the inquiry whether it was sold for the purpose of ^defrauding the creditors of [ *268 ] Maynard, because, whatever may have been the motive or object of the sale in that respect, it was valid as between him and Chapman, and vested a title in the latter, and, the attachment having been dissolved, there was no question as to the validity of the sale as to the creditors of Maynard. The defendants insisting that the lien of the attaching creditor was lost, claimed that, in that case, the jury should be instructed that the defendant was entitled to a verdict, because Maynard as his witness had testified that the goods were the property of Chapman and not of himself, and that therefore when the demand for the property was made by the plaintiff and this suit was brought, the property was proved to be in the hands of the rightful owner. The defendants were not entitled to such a charge, because, although Maj'nard had so testified, it was for the jury and not the court to decide upon the question of his credibility, and in that respect the defendants had the benefit of it before the jury. The court could properly only submit it to the jury to find, as a question of fact, from that and the other evidence, whether the property belonged to Maynard or Chapman. That question was so presented, and on the express supposition that the property had ceased to be subject to the lien of the attaching creditor; so that the defendant has no reason for the complaint that the court did not expressly inform the jury that such lien had expired. If he desired more specific instructions as to the effect of the transfer of the property which he claimed, they should have been particularly requested. In the absence of such request, it is sufficient that the court did not erroneously omit to charge as he requested, or lay down any erroneous principles to the jury.

A new trial is not advised.

In this opinion the other judges concurred.

New trial not advised.  