Fogg v. Worster , 49 N.H. 503 ( 1870 )

Foster, J.

It has recently been decided in this state that if a prisoner has, about his person, money or other articles of value, by means of which; if left in his possession, he might obtain tools, implements, assistance or weapons, with which to effect his escape, the officer arresting him may seize and hold such property for a. time, without being liable for a conversion of the property, if he acts in good faith, believing such eourse necessary for his own or the public safety, or for the safe keeping of the prisoner. Closson v. Morrison, 47 N. H. 482.

The money was taken from Worster by the hands of Brady, who, in some way, had been instrumental in the arrest of Worster, Chaney being present and having in his hands a warrant for the arrest, of Worster, upon a charge of larceny.

It is immaterial .to inquire whether or not Brady had any warrant or authority as an officer to make the arrest or hold the prisoner in custody, since at the time the money was taken from him, Chaney was present with a warrant for the prisoner’s arrest, upon which it might be well considered and is to be presumed the prisoner had been arrested, and was then in the lawful custody of Chaney; and since at that time and under such circumstances, the money came into Chaney’s possession, it is quite immaterial whether Chaney with his own hands, or through the agency of Brady, took the money from the prisoner.

The money thus taken was subject to attachment as the property of the prisoner. Closson v. Morrison, before cited.

If not attached, it would be the duty of Chaney, when the necessity for retaining the money should cease, to return it to Worster. Wiggin v. Foss, 4 N. H. 295. That necessity would probably continue so long as no process of law was interposed, upon the claim of an attaching creditor or other legal claimant of the money, which would divert the application of it from the purposes to which the prisoner might apply it, in aid of his escape. Such necessity would cease upon such interposition, for the money would thereby be effectually restrained from the use and control of the prisoner.

And, subject only to this necessity, the right of Worster to receive the money from Chaney could be enforced by an action of-assumpsit for money had and received. Wiggin v. Foss, before cited.

To maintain assumpsit for money had and received no privity oí contract is necessary in a case where the holder of the money has no legal or equitable claim superior to the owner’s right; and it is clear that Chaney had no claim to this money, otherwise than upon considerations of the public good, which would not be imperiled, but rather promoted, by the diversion of the money, to the payment of the prisoner’s debts. 1 Cranch. Appendix 440, 441. “There are many cases, says Mr. Ch. J. Parker, in Hall v. Marston, 17 Ms. 579, in which assumpsit for money had and received is supported, without any privity between the parties, other than what is created by lawn Whenever one man has in his hands the money of another wdiich he ought to pay over, he is liable to this action. When the fact is proved that he has the money, if he cannot shew that he has legal or equitable ground for retaining it, the law creates the privity and the promise.” See also, Mason v. Waite, 17 Ms. 563. And Mr. Justice Bellows in Wentworth v. Gove, 45 N. H. 161, expressed the same doctrine in these words : “The action for money had and received will in general lie wherever the defendant has in his hands money, which in equity and good conscience belongs to the plaintiff. It is purely remedial in its character, being sometimes likened to a bill in chancery; and courts have been disposed to extend rather than to limit its application” &c. Burleigh v. Bennett, 9 N. H. 19 ; Lockwood, v. Kelsea, 41 N. H. 187 ; Hudson v. Robinson, 4 M. & S. 475. “The supposition,” says Hosmer, Ch. J., in Eagle Bank v. Smith, 5, Ct. 75, “that the action for money had and received can be grounded only on privity of contract is in direct opposition, even to the common cases in which that action is sustained. There is no privity between the tinder of money lost and the owner who lost it; nor between the person who through fraud, or deceit acquires the money of another, and the person of whom it was acquired ; nor between one who has taken the fees of au officer, claiming a right to do so, and another who'has title to them ; and yet in all these cases, the action for money had and received may be maintained.

The prisoner having a right to recover the money in Chaney’s hands, it follows that a creditor of the prisoner might do the same either by direct or foreign attachment.

_ The trustee does not by his disclosure relieve himself from liability by showing that before the service of the plaintiff’s writ upon him he had parted with the possession of the money and paid it to Moses. If a prisoner summoned as trustee, admits by his disclosure that the money or property of the principal has come into his possession, he will be charged, unless he clearly states in his disclosure, matters of discharge. Sampson v. Hyde, 16 N. H. 492 ; Doe, J., dissents from the opinion of the court in this particular, upon grounds stated by him in Kendall v. Brownson, 47 N. H. 186.

It does not appear and cannot be presumed that Chaney had any authority from Worster to pay over the money to Moses, and in the absence of such authority he is still liable to respond to Worster or to his creditor, the plaintiff in this suit. We are therefore of the opinion that the trustee must be held chargeable.

Exceptions sustained and Trustee charged.