#### * Jesse Jewett *versus*William Torrey.

The defendant had given the plaintiff, a deputy sheriff, an accountable receipt for *“ English*and *West India*goods to the amount of 150 dollars, attached at the suit of A against B,” promising to deliver the same to the plaintiff on demand. A having recovered judgment and execution, the defendant was hoi den liable on his promise, although it appeared that the goods had not been removed from, the possession of the general owner, in consequence of the attachment, but had been disposed of by him for his own use and benefit

This was an action of *assumpsit,*brought upon the following receipt, *viz.: “ Bath,*July 7,1811. Received of *Jesse Jewett,*deputy sheriff, *English*and *West India*goods to the amount of one hundred and fifty dollars, attached on a suit of *John Getchel*vs. *Jesse*Emerson; which goods I promise to deliver said *Jewett*on demand. *Wm. Torrey.”*

The action was submitted to the decision of the Court upon a case agreed by the parties.

The plaintiff, being a deputy sheriff, having a writ of attachment in favor of *John Getchel*against *Jesse Emerson,*went to the store of *Emerson,*containing *English*and *West India*goods more than sufficient to respond *Getchel’s*demand; *Emerson*being then absent, and the store being under the management of his apprentice or clerk. Upon the plaintiff’s making his object known to the clerk, and desiring him to procure some person to receipt for the amount, the clerk went into the street, and saw the defendant passing along *204in haste, whom he requested so to receipt. The defendant promised to call and sign a receipt on his return. In the mean time, the plaintiff wrote the receipt, which the defendant signed on his return, and immediately left the store, desiring the clerk to see what he had signed, and to take a copy of it.

Neither the plaintiff nor defendant removed the goods or took any account of them; but the same remained in *Emerson's*store, and were afterwards sold for his benefit.

In January, 1812, *Getchel*recovered judgment, and sued out execution against Emerson, and delivered the execution to one *Wyman,*then a deputy sheriff; who within thirty days demanded of *Torrey*the goods mentioned in his said receipt, offering to deliver him the receipt upon his delivering the goods, which *Torrey*refused.

*Warren,*for the defendant.

Here was no attachment of these goods by the plaintiff, to constitute which there must be actual possession arid custody. (1) The plaintiff then had no such special property in the goods, as gave him a right to demand a [ * 220 ] receipt for them, or entitled him to require *a delivery of them from the defendant. The contract was *nudum factum,*being wholly without consideration.

*Rice*for the plaintiff.

(1)

5 *Mass. Rep.*157, *Lane & Al.*vs. *Jackson.*

*Per Curiam.*

The evidence is of a written receipt and promise,

on the part of the defendant, to deliver to the plaintiff goods, not specified as to the particular articles, but of which the amount or value and general quality are distinctly stated; and the special purpose of the receipt is also mentioned, *viz.,*to respond an attachment. A breach of the promise is also proved by the demand and refusal to deliver the goods.

It is objected that the case shows that there had been no sufli- * cient and legal attachment of the goods by the plaintiff. But it is not for the defendant to make this objection. His receipt acknowledges an attachment. He is not to defend himself by questioning the right of the plaintiff. If the goods have been restored to the general owner, the debtor in the writ of attachment, this will not excuse the defendant, when the right of the plaintiff has been continued and enforced by a judgment and execution, and a demand of the goods within thirty days from the judgment, *(a)*

*Defendant defaulted.*

(a)

**See ante, *Whittier*vs. *Smith & Al. 211.*— *Knapp*vs. *Sprague,*9 *Mass. Rep.*262, and note. — *Bagley*vs. *White,*4 *Pick.*395. — *Chapman & Al.*vs. *Searle,*3 *Pick.*38.