No citing cases on record.
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[*185] 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.]