14 N.H. 367 | Superior Court of New Hampshire | 1843
The instructions of the court below were correct throughout.
If the money was the property of the son, earned and held by him to his own use, as the defendant contended, with the approbation of the father, whether paid in settlement of a trespass or to compound for a crime, or otherwise on his own account, it manifestly cannot be recovered in the present action by the father. It certainly was never had and received by the defendant to the use of the present plaintiff. This is said without any reference to the question whether any circumstances could be shewn which would entitle the son to recover, or to vary the case with regard to him, as a minor, from the operation of rules which must govern the case of the father.
But the plaintiff contends that the money paid by the son was his (the plaintiff’s) own money, furnished to the son for a specific purpose, and misappropriated by him in making the payment to the defendant. Supposing this to be true, it was still for the jury to decide as to the consideration for which it was paid ; whether to compound for the crime, olio settle for the civil trespass. If they were satisfied that it was the former, and that the plaintiff did not in any way assent to the payment, of course he might recover. Such a consideration was illegal and void, and no inference can be drawn from the fact that money was placed in the son’s hands for legal purposes, that the father had authorized him to apply it to a purpose which the law forbids. The defendant receiving money on such a consideration would have
But it is as much an illegal act to pay money as to receive money in composition of crime. If, therefore, the payment by the son for such purposes was in fact assented to by the father, he has committed an illegal act, which he cannot now make the foundation of a claim, even against the person who has profited by that act, and been equally an offender and partaker with him.
It remains for us to consider one other case, that of a payment by the son, not to compound for crime or suppress prosecution, but merely in settlement of the trespass.
The instructions of the court upon this point were, that, though the facts were as contended for by the plaintiff, if the settlement was a fair and reasonable one, and the defendant ignorant that the money belonged to the present plaintiff, he could not recover.
As a general rule, it is clear that the true owner may follow his property misapplied by an agent, (that is to say, in a manner warranted neither in fact or by presumption of law,) wherever he can find it. From the necessity of the thing, however, an exception exists in the case of the ordinary currency of the country. It has no “ ear mark.” 7 Bingh. R. 284, 292, Lang vs. Smyth; 5 Moore & Payne's R. 78, 82, S. C.; 17 Mass. R. 560, 563, Mason vs. Waite. If the defendant took the money in good faith, as the money of the son, and if the adjustment was in itself fair and reasonable, the plaintiff cannot now recover the money. There must, therefore, be
Judgment on the verdict.