Moody v. Mahurin

4 N.H. 296 | Superior Court of New Hampshire | 1828

Richardson, C. J.

The law of this case is extremely clear. When an officer has collected the money upon an execution, it is his duty to return the execution to the court, when and where it is returnable.

In New York, and in England, the officer is bound in such a case either to pay over the money to the plaintiff, or pay it into the court on the return day of the execution. 18 Johns. 131, Rickey v. Bowne; 1 Starkie, 388, Moreland v. Leigh; 2 Brod. & B. 77 Tidds Prac. 929.

This rule of law rests upon the form of the fieri facias, which commands the sheriff to have not only the writ, hut the money, in court on the return day. Tidd’s Prac. Forms. 198. The sheriff is held to obey strictly the command of the writ. Thus it has been held, that where a sheriff qrrested a debtor upon a capias ad satisfaciendum, and having received the money, let the prisoner go at large, but did not pay over the money to the creditor, he was liable for an escape, the command of the writ being, that the debtor should be detained, until he paid the creditor. 14 East 468, Shackford v. Austin.

In this state, the law on this subject is otherwise. The sheriff is commanded by the writ of execution to have the writ in court upon the return day, but he is not commanded to have the money there.

He is to retain the money in his own hands, until it is legally demanded ; and then he is to pay it over to the creditor or his attorney, and upon his neglect to pay on demand, he is liable to pay thirty per cent, per annum upon the sum detained until the same is paid. 1 N. H. Laws 137 and 93; 3 Mass. Rep. 249, Wakefield v. Lithgow; 7 Mass. Rep. 464, Esty v. Chandler.

In this case, Bellows was not bound to pay the money, until it ivas demanded by a person authorised by the plain, tiff to receive it. But being requested by the plaintiff to send the money to the Merrimack bank, had he delivered the amount to any responsible person to be carried to the place directed, in money, which the plaintiff was bound to receive, the money would then have been at the risk of the plaintiff, and Bellows no longer responsible for it. 3 Mass Rep. 251.

But instead of complying with the request of the plaintiff to send the money to the Merrimack Bank, Bellows paid over the money to Pearson, who had no authority, express or implied, from the plaintiff to receive it, and took Pearson’s receipt. Nothing can be clearer, than that such a payment could not discharge Bellows.

Pearson transmitted the money to the Merrimack Bank, in bills which were sent to the plaintiff. But he was not bound to take bank bills. They were not a tender. 7 Johns. 476, Warren v. Mains; 3 D. & E. 554, Wright v. Read; 2 B. & P. 526, Grigby v. Oakes.

If then the delivery of the money, by Bellows to Pearson, is to be viewed in the light of payment, it is clear that the plaintiff is not bound by it.

But the money may perhaps be considered as sent by Bellows to the Merrimack bank. If, however, it be viewed in this point of light, it is clear, that Bellows was bound to send the amount in legal money, unless otherwise directed. But there is nothing stated in this case, which shows either expressly or by implication a request to send bills.

Had the plaintiff directed the money to be sent by mail, that would by necessary implication have been a request to send the sum in bills. But his directions were to send the money by a private conveyance. If therefore the transaction be viewed in this light, the plaintiff was not bound to receive the bills.

The plaintiff had then a clear right to return the whole amount which was transmitted to him, and to call upon Bellows for specie. But he retained all the money except $25, which he returned to Pearson with directions to call upon Bellows and have it exchanged. Pearson called upon Bellows as directed, and requested him to exchange the money. Two of the bills were exchanged and the money transmitted to the plaintiff. But Bellows refused to exchange the other three probably under an impression, that Pearson had authority to receive payment, and that the plaintiff was bound by a payment accepted by his agent in current money.

It is very clear that the plaintiff’s letter to Pearson returning the $25 and requesting him to call upon Bellows to exchange the money, made Pearson the plaintiff’s agent for that purpose, and that when Pearson requested Bellows to exchange the money, it was a legal demand of the sum. Bellows’ refusal to exchange the money then was a breach of his duty, for which this defendant is liable.

We are therefore of opinion that the plaintiff is entitled to judgment for $15 and interest upon that sum from the time, when Pearson requested Bellows to exchange the money. ,