« AnteriorContinuar »
property of the city, although it stood in Parker's name, respondents had no right to a judgment against the gar-Dishee.
2. The respondents present several propositions, supported by authority, to the effect that a custodian of public funds, who is required by law to give a bond for the proper disposition of the moneys coming to his hands, is not a mere bailee, but is a debtor; and the argument is drawn therefrom that the money which he receives is his, and can be applied to the payment of his debts.
The general rule is conceded to be that an agent cangunder no circumstances, so deal with his principal's property or money that the former cannot, as against him, follow and recover it or its proceeds, whatever shape he may have caused it to take. And all persons into whose 476 hands the prinecipal's property, or its proceeds, may come, with notice of its character, are likewise responsible to him in a proper action: National Bank v. Insurance Co., 104 U. S. 54; Farmers' etc. Bank v. King, 57 Pa. St. 202; 98 Am. Dec. 215; Van Alen V. American Nat. Bank, 52 N. Y. 1; Overseers of Poor v. Bank of Virginia, 2 Gratt. 544; 44 Am. Dec. 399; Meadowcroft V. Agnew, 89 Ill. 472.
Now, a collector or treasurer of a municipal corporation without bond and without statutory obligations, would at com-mon law be a mere bailee, and the rules governing bailmentswould apply to him the same as any other agent. But it is universal that such officers are required to give bonds, and that statutes govern their liability, and out of this fact have grown many cases which seem at first glance to sustain the view that they are debtors and not bailees, and that the money they receive is their own.
In Inhabitants of Colerain v. Bell, 9 Met. 499, it was said: “The specific money received by a collector, in the collection of taxes, is his money, and not that of the town.”
In Inhabitants of Hancock v. Hazzard, 12 Cush. 112, 59 Am. Dec. 171, the court, speaking of a collector of taxes, said: “His obligation is not regulated by the law of bailments, and the cases cited to that effect are not applicable. He is a debtor, an accountant."
In Egremont v. Benjamin, 125 Mass. 15, concerning a town treasurer, the expression was used: "He was not a bailee of the moneys received, but an accountant."
Halbert v. State, 22 Ind. 125, declared it to be well estab
lished that a public officer required to give bond for the proper payment of moneys coming into his hands officially, is not a mere bailee of the money. Rock v. Stinger, 36 Ind. 346, held that the technical legal title to 477 money in the hands of a township trustee was in himself, and that a loan of such money did not constitute an illegal transaction; and 80, in Shelton v. State, 53 Ind. 331, 21 Am. Rep. 197, it was ruled that there could be no recovery against a county treas. urer for interest received by him on deposits of county funds in a bank, because the money received by him became his own money. This case notes the absence of statutory provisions, which will be spoken of hereafter. Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637, contains an elaborate review of the subject in an action for money had and received against third persons alleged to have received and used money furnished by a county treasurer out of county moneys in his hands, and it was held that the officer was not a bailee merely, and that the action brought would not lie; yet the opinion strongly intimates that an action on the case or a bill in equity might be sustained. So far has the argument drawn from these cases been carried, that, in State v, Keim, 8 Neb. 63, it was held that the state could not recover money deposited by its treasurer in a bank, on the ground that it was a loan of money prohibited by statute, and not the result of a conspiracy to obtain public money; and in First Nat. Bank v. Gandy, 11 Neb. 431, a judgment creditor of a county treasurer was awarded judgment against a bank, as garnishee, of funds deposited with it by the officer as treasurer. The statute made it a crime for the treasurer to loan public money, and the bank was held to be estopped to set up the fact that it had assisted in the accomplishment of the forbidden act.
A leading case on this subject is United States v. Prescott, 3 How. 578, where it was said in an action on the bond of a receiver of public moneys: “This is not a case of bailment, and, consequently, the law of bailment does not apply to it. The liability of the defendant arises out of his official bond, and principles which are founded upon public policy."
478 The case last cited was followed in United States v. Morgan, 11 How. 154, and United States v. Dashiel, 4 Wall. 182. But United States v. Thomas, 15 Wall. 337, cleared the atniosphere surrounding the point in discussion to a very great extent. The decision in that case, reviewing the former
federal cases, held that a collector of the government was a bailee, but that the policy of the acts of Congress had exacted from him a more strict accountability than the common law imposed upon the ordinary bailee. The opinion refers to acts of Congress restricting the authority of depositaries of public moneys, including prohibition against depositing in banks and declaring certain acts to constitute a crime. It finds the rule to be nearly absolute that the officer is responsible for government money; but it proceeds: "Still they are nothing but bailees. To call them any thing else, when they are expressly forbidden to touch or use the public money except as directed, would be an abuse of terms. But they are special bailees, subject to special obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility.”
It seems to us that every one of the earlier cases cited, where the expression was used that such and such an officer was not a bailee or a mere bailee, or was a debtor, must be regarded from the standpoint of the court and the particular case. They were, one and all, cases where suit had been brought upon the bond of the officer, and he was attempting to excuse his default because he had lost the money by robbery, or from some other cause over which he claimed to have had no control. But in every such case it was held that his liability was absolute, and the true reason, under United States v. Thomas, 15 Wall. 337, must be, not that he was any the less a bailee, but that the statute imposed upon him & measure of duty larger than that found in the common law. If the courts of the states adhered to 479 the view broadly stated in Rock v. Stinger, 36 Ind. 346, that the money in the hands of the county treasurer is his own money, how is it that the sole case which is cited that such money can be applied to the payment of his individual debts is found in Nebraska? Why do we not see creditors of such officers sending the sheriff into the very safe of the county treasurer and taking therefrom the money which belongs to the treasurer upon execution against him? Why are not army paymasters stopped on the road and required, by supplementary proceedings, to pay their debts out of the money in their hands for the payment of troops? No lawyer would think of such a proceeding for one moment, because the money in their hands belongs to the public and not to themselves; and, if the money in the hands of the officer is thus exempt, what can there be
in his depositing it in a bank, or loaning it to an individual, which changes his ownership of it, or of the debt created by his deposit or loan? Any principal whose agent converts or deposits or loans his money can continue to look to the agent and compel repayment by him as a debtor; but he is not bound to do so when the person receiving it has knowledge of the relations of the principal and agent. Nor is there any thing in the fact that states or municipal corporations require bonds which increase the certainty that their agents will faithfully account, which should deprive them of the common-law right of private principals in similar transac tions.
Again, we have, in this state, laws which are fully equivalent to the acts of Congress referred to 80 restricting the authority of federal depositaries, with the exception that de posits in banks are not expressly forbidden; for section 57 of the Penal Code makes it a felony for any officer to use any portion of the public money intrusted to him, in any manner or for any purpose not authorized by law, which is the same as a prohibition against using it except as authorized by law. Under the Nebraska case cited it was held that a deposit of such funds in a bank would be a breach of the bond of the officer, and a violation of a penal statute similar to ours. This may be correct, but we do not believe it to be logical to bay that for that reason the equitable owner of the fund should not have it, or that the debtor bank should be estopped to defend in garnishment by disclosing such owner. The liability of the bank to the officer is a chose in action which, although the naked legal title to it is in him, really belongs to bis principal. Some complications may grow out of this doctrine, as they certainly must out of any other; but it is mot a new doctrine at all, and it will operate as well in practice where a municipal corporation is the principal as where he is a private individual or corporation: See Mechem on Public Offices, sec. 922, and cases cited.
Although garnishment is a purely statutory proceeding, it is always administered upon equitable principles, and upon the answer of the bank and the proofs we hold it not to be diable for respondent's judgment against Parker.
Judgment reversed, and cause remanded, with instructions to dismiss the garnishment proceeding. The First National Bank of Fairhaven will recover costs against respondents, but
not against the city of Fairhaven. The city of Fairhaven will not recover costs.
DUNBAR, C. J., and ANDERS, SCOTT, and Hoyt, JJ., concur.
GARNISHMENT OF TRUST FUNDS.–Funds in the hands of a trustee in equity are not, as a general rule, liable to attachment antil the share of the debtor has been ascertained by a statement of the trustee's trust, and the settlement of his final account: Groome v. Lewis, 23 Md. 137; 87 Am. Dec. 563, and note. Money held in a fiduciary capacity, but deposited by the bolder to his general account in a bank, still belongs to the other party, and cannot be garnished or attached for the depositor's debt incurred before such deposit: Morrill v. Raymond, 28 Kan. 415; 42 Am. Rep. 167, and especially note. Funds in the hand of a trustee subject to the control of the court cannot be attached: Cockry v. Leister, 12 Md. 124; 71 Am. Dec. 588, and note. If a trust is valid, subsequent attachments will not affect the funds, and subsequent garnishee process could not, if applicable at all, gain any preference over the creditors who had precedent rights under the trusts Keppel v. Moore, 66 Mich. 292. See, further, the notes to the following cases: Lightner v. Steinagel, 85 Am. Dec. 295; and King v. Moore, 41 Am. Doc. 44.
OLSON V. VEAZIE.
(9 WASHINGTON, 481.] JUDGMENTS AGAINST PARTNERS_DESIGNATION OF PARTIES.—A judgment
describing the parties against whom it is rendered by their partner. ship name is valid, although in the action in which the judgment is rendered they are sued as individuals composing a partnership and as joint debtors, and designated by their individual names in the plead.
ings, incluiling the caption to the judgment entry itself. JUDGMENTS-ACTIONS UPON.--A party who has recovered a joint judgment
upon a joint and several claim may thereafter inaintain an action
upon the judgment against either of the judgment debtors. JUDGMENTS OF SISTER STATES-ACTIONS UPON-INTEREST.-In an action
upon a judgment rendered in another state interest may be recovered thereon, although the judgment sued on does not of itself purport to bear interest, and there is no proof of a statute of such state authoriz. ing the collection of interest on judgments rendered therein, Stevens, Seymour & Sharpstein, for the appellant.
M. L. Clifford, for the respondent.
481 ANDERS, J. On October 13, 1884, the respondent, John Olson, comenced an action in the district court of the first judicial district, in and for the county of Washington, in the state of Minnesota, against the appellant, Orange Walker, and Samuel Judd, as partners doing business as Walker, Judd & Veazie, to recover the amount due on three promia