53 Ind. 331 | Ind. | 1876
Action by and judgment for the appellees against the appellant. Two errors are propei’ly assigned in this court. The first is the overruling of the demurrer of the defendant to the complaint, and the second, overruling the motion of the defendant for a new trial.
In the complaint, it is alleged, in substance, that on the fith day of August, 1865, the defendant became and was the duly qualified treasurer of Morgan county, and continued to hold that office and to discharge the duties thereof, until the dth day of August, 1871, during which time he had in his hands large sums of the public moneys of said county, being all the public moneys and funds of the county; that he deposited such funds in and with the First National Bank, in Martinsville, in said county, and received from said bank interest, profit and income for and upon the same, and for the use and deposit thereof, for and during the time aforesaid, two thousand one hundred and forty-one dollars and ninety-seven cents, a bill of particulars of which is filed, and which he converted to his own use; that the defendant ceased to be such treasurer on the said 6th day of August,
Following the complaint in the record is this agreement t
“I, Joseph R. Shelton, the rvithin named defendant, hereby waive the issue and service of process on me in said action, and enter my appearance thereto. I further waive all objection to the form of the action, and that the same is not on my official bond, said action being brought in this form, and not on my bond, but against me alone, by agreement, at my instance, the object being to have determined, in the most direct and least expensive mode, whether I am liable for interest received by me on deposits of money in my hands, while acting treasurer of said county of Morgan. I reserve the right to demur to the complaint, on the ground that the facts stated do not maké a cause of action against me, and, upon proper answer, to defend said action on its merits.
J. R. Shelton.”
“ February 5th, 1872.”
Any further statement of the facts, to show how the question for decision is presented, is deemed unnecessary. The question is this: Is the defendant liable to pay over the amounts collected and received by him as interest, as aforesaid, on the public moneys which came to his hands, and which were by him loaned to and deposited with the bank? The question is argued, with their accustomed ability, by counsel on both sides.
It is claimed by counsel for the appellees, that the money in the hands of the treasurer was so far trust funds, and the treasurer so far in a fiduciary relation to the county, or as an agent of the county, that all the profits made by him from
Counsel for the appellant, on the contrary, contend that the appellant did not stand in any fiduciary relation to the county or its funds, nor did he occupy the position of an agent of the county, and, consequently, was not liable to account for such interest.
Counsel for appellees cite and rely on the following authorities :
Docker v. Somes, 8 Eng. Ch. 172; Story Agency, secs. 16, 207, 210, 306; Dunlap’s Paley’s Agency, 49; Diplock v. Blackburn, 3 Camp. 43; Earl of Lonsdale v. Church, 3 Bro. C. C. 41; Massey v. Davies, 2 Ves. Jr. 317; Michoud v. Girod, 4 How. U. S. 503; 1 G. & H. 641, secs. 7 and 8; Utica, etc., Co. v. Lynch, 11 Paige, 520; Barney v. Saunders, 16 How. U. S. 535; U. S. v. Prescott, 3 How. U. S. 578; and U. S. v. Morgan, 11 How. U. S. 154.
Counsel for appellant cite the following authorities upon the main point:
2 Spence Eq. Jur. 917; 2 Story Eq. secs. 1268, 1272, 1273; Brice v. Stokes, 2 Lead. Cas. Eq., 4th ed., 1742, et seq.; Supervisors, etc., v. Dorr, 25 Wend. 440; Muzzy v. Shattuck, 1 Den. 233; Inhabitants, etc., v. Hazzard, 12 Cush. 112; Inhabitants, etc., v. Bell, 9 Met. 499; Commonwealth v. Comly, 3 Penn. St. 372; U. S. v. Prescott, supra; East India Co. v. Henchman, 1 Ves. Jr., 287; Massey v. Davies, supra; Beaumont v. Boultbee, 7 Ves. 599; Prevost v. Gratz, Pet. C. C. 364; Campbell v. Penn. Life Ins. Co., 2 Whart. 53; Bartholomew v. Leech, 7 Watts, 472; Michoud v. Girod, supra; Barney v. Saunders, supra; Diplock v. Blackburn, supra; Newton v. Bennet, 1 Bro. C. C. 359; Perkins v. Bayntun, 1 Bro. C. C. 375; Foster v. Foster, 2 Bro. C. C. 617; Treves v. Townshend, 1 Bro. C. C. 384; Brown v. Litton, 1 P. Wms. 140; Ratcliffe v. Graves, 1 Vern. 196; Lee v. Lee, 2 Vern. 548; Hicks v. Hicks, 3 Atk. 274; Earl of Lonsdale v. Church, supra; Chedworth v. Edwards, 8 Ves. 47.
The judgment is reversed, with costs, and the cause remanded.