2 Edw. Ch. 95 | New York Court of Chancery | 1833
All the parties who are defendants in this cause have taken exceptions to the master’s report. Those, of the defendant Henry Bangs, go to exclude the defendants Jacob Hays, Zebulon Homan, Benjamin J. Hays and Maria Van Riper from any participation in the reward which had been offered by the complainants; claiming, for himself alone, the whole of the amount. The exceptions taken by Hays, Homan and Benjamin J. Hays, jointly, do not extend to the entire exclusion of Bangs, for they admit his right to participate, but insist that á greater sum is reported in his favor than he ought to be allowed ; that his allowance ought to be diminished and their own increased ; while as respects the defendant Maria Van Riper, that she is not entitled to any part. And the defendant Maria Van Riper excepts, on the ground of the smallness of the sum reported in her favor, insisting upon her right to a much larger amount, in common with the defendant Mr. Bangs, alleging how the other defendants, from being public officers, were not entitled to any share or participation in the reward.
Hence none of the exceptions taken adversely to Henry Bangs entirely deny his right. They only go in diminution
I shall first consider the joint claim of Jacob Hays, Benjamin J. Hays and Zebulon Homan. These persons were public officers attached to the police department. Their general duties, as such, are to arrest persons chargeable with of-fences of a criminal nature and to bring them before a magistrate for examination. They are also to search for stolen property, and, when discovered, to take possession thereof, with a view to its being restored to the righful owner. For their services in the discharge of such duties, they are entitled to a stated compensation ,or to certain fees allowed by law. It has been contended that public officers ought not to -be permitted to receive gratuitous rewards, because they are bound to a prompt and vigilant discharge of their duties, without the hope or expectation of being thus compensated; the policy of the law, which has in view the safety of the | .-community, is said to be against it; and self-interest, if they 1 -are allowed to participate in rewards as a remuneration for f services, will cause them to be indifferent and even remiss, | until prompted by what they, themselves, may deem a sufficiently liberal offer ; so that no active exertion will be made to arrest felons or to recover stolen property, without an incentive of this sort. There is considerable force in this argument; and some illustrations have been given which show how the practice of allowing public officers to participate in rewards may lead to abuse. Still, I am not prepared to say, they should be entirely excluded. Rewards are offered only when?! it is supposed the ordinary means of discovery and detection! would prove ineffectual. They are voluntary offerings and! adapted to what the party making the offer deems to be the t necessity and urgency of the occasion. The object is, to \ awaken public attention to the subject, excite vigilance, and call forth extraordinary individual efforts for the accomplish- i
The case of Weaver v. Whitney, Hopk. 11. was widely different from the present; and the principles upon which it was decided do not apply. In Hatch v. Mann, 9. Wend. 262. there is a principle bearing more directly upon this subject. It was held that an officer whose duty it was to serve process might recover compensation over and above the fees allowed by law when, on a promise of reward, he uses extraordinary efforts beyond those which an officer is .strictly bound to make or whfclí*ceuld'legally be required ,of |him. -
y Then, since the law does not exclude public officers from extra rewards, I shall proceed to examine the merits of the 8claim made by these parties, through the facts and testimony in .the cause.
The City Bank had been entered by means of false keys and robbed of a large amount of bank notes and money. The directors advertised the same; and publicly offered a reward, in the first instance, of five thousand dollars, but which was increased in a few days afterwards to ten thousand dollars, “for the recovery of the property and a proportionate sum “ for any part.” On Monday, morning when it was first discovered the Bank had been robbed, one of the police magistrates and three of the officers of the police, being the persons before named, were sent for, and upon being informed .of the manner in which the robbery had been committed, the ((suspicions of the justice and officers were immediately fixed yupon Smith and Murray, the two persons who, it was eventually proved, were the perpetrators—indeed, Jacob Hays expressed a confident belief of their being the parties. He and Homan then proceeded to Smith’s dwelling-house in Divi
During this time, suspicions were excited in the minds of Mr'. Bangs and his wife (and especially by the latter)' in relation to a stranger, calling himself Jones, who had come to their house as a boarder on the same Monday morning on which the robbery was known; and his conduct was closely observed by Mrs. Bangs. A variety' of circumstances transpired from' day to day, having a tendency to increase these suspicions; and, finally, on the following Saturday" evening, she became so thoroughly Convinced of hisbeing the bank robber, and that his trunks Contained the stolen property (and which, appearances indicated he was about to remove) that she insisted upon her husband’s taking measures to arrest him. Mr. Bangs accordingly determined to do so. He called upon one of his neighbours, a Mr. Hollingshead, to whom he had, the day before, communicated his suspicions, and inquired where he could get an- officer to- arrest Jones; whereupon Hollingshead went with him to Jacob Hays’ house and introduced him to the latter person. Mr. Bangs then communicated his suspicions to Mr. Hays. The latter enquired of he former, if he wished him to go along with him ? to which the replied that he did,- and stated that he came there to see him for the purpose of having him go and arrest Jones. Mr. Hays then turned to his son, Benjamin, and asked him to walk with them. They all started together for Mr. Bangs’ house. Near to it they accidentally fell in with Mr. Homan. Mr. Bangs was the first to enter the house and ascertained that Jones was absent; and then, for greater precaution, he let them all in
This is the statement, substantially, given by Hollingshead, upon his examination as a witness, of the discovery of the stolen, property and of the arrest of the identical Smith, who had assumed the name of Jones.
I think much depends upon the motive of Mr. Bangs in calling upon Mr. Hays on this occasion and the part which he and the officers acted upon arriving at the house of the former.
It is contended on the part of the officers, that Mr. Bangs only intended to communicate his suspicions and then leave them to act as they might think proper: taking upon himself no responsibility and .withdrawing entirely from any participation in the enterprise; and Justice Hopson’s testimony is relied upon for the purpose of establishing the fact. It appears by this gentleman’s testimony, that, immediately after lodging Smith in the watch-house, Jacob Hays went to Mr. Hopson’s dwelling, called him from his bed, and informed
In order to show that either Mr. Hopson is mistaken as to the time and place of this particular conversation or that Bangs did not hear it and is not, by his silence, to be considered as having admitted the truth of Benjamin J. Hays’ statement, a number of witnesses, who were present during the whole of the time when the magistrate and parties remained at the watch-house, have been examined.
The testimony of Woodruff and Wells goes far to show that no such conversation did take place there at the time re? ferred to or, if it did, that it was not sufficiently audible to be heard by the bye-standers. They heard no such convcr
There is nothing, then, in opposition to Hollinghead’s testimony in relation to the proceedings of Mr. Bangs on Saturday evening or in the manner in which the discovery of the stolen property or arrest of the thief was brought about.
According to the evidence, Mr. Bangs did not shrink from the responsibility, but acted throughout as the principal in seizing the trunks and arresting the felon. It appears from Mr. Randell’s testimony (which is corroborated) that Mr, Bangs took legal advice of him on Friday evening as to how he should proceed, stating his suspicions of the boarder in' his house and the circumstances which gave rise to thenu And, the next evening, when the further circumstanc'es' had: transpired which determined him to act, he followed the advice which Mr. Randell had given him: This advice was,
to take a person as a witness and go to Mr. Hays and procure his assistance. There is no doubt the application was made to Mr. Hays as an officer of the police and that the object of Mr. Bangs was to procure his attendance as such officer, and that both he and his son Benjamin' J. Hays consented to go in their official capacities. On meeting with Mr. Homan, he joined them in the same character.
It is said, however, that they had no- warrant either to search or arrest and could not act officially and- that, whatever they undertook- to do was as private citizens and upon the risk of being deemed trespassers, provided the suspicions of Bangs proved groundless. No warrant, indeed, was ever issued by the police magistrates in the case of this most extraordinary robbery. Whatever' pursuit or search took place during the week was without authority of warrants. This affords a strong presumption that, in the opinion of the magistrates and officers attached to the police, the issuing of warrants in such a case -is unnecessary—especially when the felony has become notorious.
In my opinion, therefore, there is no ground for the latter claiming any portion of the reward upon the score of risk assumed or liability incurred in acting without a warrant. They were officers of the police in the discharge of their ordinary duty to the public; and, although instrumental in restoring the property to its rightful owners, yet they were as the mere conduit through which the recovery was passed. Mr. Bangs was the moving cause; by his means or those which belonged to him the property was recovered; to his vigilance and determination (or to that of his wife’s, which is the same thing) the recovery may be fairly attributed. The good sense and meaning of the terms “ for the recovery
Indeed, if they should be entitled to any thing, then there are a number of others who have contributed, in a degree, by their advice and assistance, to the recovery and restoration of the property who, upon the same principle, would be entitled to share, but who have not claimed. Mr.'Hollingshead may be mentioned as one. But it is impossible to admit such claims upon any just principle. The rule by which to determine the relative rights of such claimants would be altogether arbitrary. It is not like the case of salvage in the marine law, where the salvors are all engaged in one common enterprise and mutually participate in its perils and dangers. Here, no such circumstance exists applicable collectively to Bangs and the officers.
My conclusion upon this branch of the case is that no right to an equitable apportionment of the reward is established on the part of any of the officers.
There is pretty strong evidence that Jacob Hays, both publicly and privately, in conversation with individuals immediately after the detection and recovery, disclaimed all right to the reward. Still, I do not place much stress upon this circumstance: for, if, upon any sound principle, he was entitled to claim, his declarations thus made would hardly be sufficient to deprive him of his right. He did, in fact, put in a claim about the same time and there are reasons why he might have wished to consider it a matter of private
I now come to the claim of Maria Van Riper for a portion of the reward. She was a domestic in the family of Mr. Bangs and claims upon the ground of contributing, in the way of discovery and information, to Mrs. Bangs two particular facts, which confirmed her suspicions and led to a determination on her part to send her husband for the officers. The first circumstance is, that on Friday, when the boarder had his accomplice in the room, with the door locked, she called Mrs, Bangs’ attention to the circumstance of the window shutters being partially closed; and the other that on Saturday, having discovered a small morocco trunk in his room, she mentioned the circumstance, and also, on perceiving the boarder going out with the same under his cloak, she told of it; that it was upon this, Mrs. Bangs immediately went to the room and finding the remaining trunks strapped, as if ready for removal, proceeded to take the measures already stated for their seizure. With respect to the first circumstance : the testimony fails entirely of proving she first discovered and gave information of the closing of the window shutters. Mrs. Bangs undoubtedly became aware of it, and it might have been from her own observation; and as to the latter the evidence is contradictory. One fact seems to be admitted, namely, that Maria Van Riper did mention to Mrs. Bangs sometime on Saturday of the boarder’s having brought in a small morocco trunk which was then in the room; and if the witness Maria Smith be correct as to the conversation to which she testifies between Maria Van Riper and Mrs, Bangs, the inference is that the former did discover him going out with the small trunk and gave the latter information of it. This, too, is probable, from the circumstance of her serving him with tea in his room and thereby having an opportunity of observing his actions—added to the fact of his going out immediately after tea and about the time she naturally must have been engaged in removing the tea service. I am disposed to think it is true that Mrs. Bangs did derive her information from this servant of the robber’s carrying out the small trunk and that upon this she was induced almost immediately to go up
The result of my opinion upon the whole case is that the exceptions taken to the master’s report by the defendant Henry Bangs must be allowed ; and that those taken by the defendants Jacob Hays, Benjamin J. Hays and Zebulon Ho-man and by Maria Van Riper respectively be disallowed. The decree should be entered declaring the defendant Bangs entitled to the whole of the fund paid into Court by the complainants in the cause.
In expressing this opinion I do not mean to be understood as saying that the officers are not entitled to some compensation, besides what they may have received from the police department or the public for the time spent and the services performed at the request of Mr. Bangs in securing the money and arresting the felon. If they have any claim of this sort, as upon a quantum meruit (but about which it is not for-me to express any opinion) it must be made against Mr. Bangs personally. But it gives them no title to the reward offered by the bank, nor any right specifically to the fund in Court.
With respect to the costs of this litigation: I think it is pro
I apprehend it will not be difficult for the master to- separate his bill accordingly.