This was an action commenced by the appellant against Lucas, and in connection therewith an attachment was sued out against the property of Lucas, on the ground that he had left the State with intent to defraud his creditors. The plaintiff’s claim against Lucks was for money had and received by him to and for the use of the plaintiff Lucas made default. Hunter and several other creditors of Lucas, having filed their claims under the attachment, and become parties to the suit, were permitted by .the court to defend against the claim of the express company, on the ground that Lucas was absent, was not intending to make any defense thereto, and that the same was unfounded.
They filed an answer of two paragraphs, but as the first was afterward withdrawn, no further notice need be taken of it. The second paragraph alleges that at the time of receiving the money charged in plaintiff’s bill of particulars, and for a long time before, and ever since, the United States Express Company, plaintiff in this suit, was and is an associa
The plaintiff replied in two paragraphs, but afterward withdrew the first, so that no question is made with reference to it. In the second it is alleged that the company, on the 6th day of June, 1856, filed and caused to be recorded in the office of the recorder of said Huntington county a written statement, a copy of which was therewith filed, and also caused the same to be published in the Indiana Herald, a weekly newspaper printed and published, and of general circulation in said county.
The statement referred to in the reply is as follows:
“ State of Indiana, Huntington County, ss :
A statement respecting the affairs of the United States Express Company, made pursuant to an act of the legislature of the State of Indiana, entitled an act declaring express companies to be common carriers, and providing for the safety of articles entrusted to their care, approved March 5 th, 1855. The business of said company is managed, and its property and effects are owned by five trustees, whose full names and proper places of residence are as follows: Dan-ford N. Barney and James McKay, both of the city of New York, Elijah P. Williams of the city of Buffalo, in the State of New York, and Asbel H. Barney of the city of Cleveland, in the State of Ohio, and one vacancy. The persons interested as cestui que trust are the stockholders of said company, who change from day to day, and of whom it is impossible to make an accurate statement, owing to the frequency of such changes. The amount of capital employed in the business of said company in the State of Indiana is, as nearly as the same can be ascertained, five thousand dollars. And we, the subscribers, the trustees above named, do hereby agree that legal process served upon any authorized agent of said company, in said county, shall be deemed and taken as good service upon said company and ourselves.”
The parties admitted to defend demurred to this paragraph of reply, and the demurrer was sustained, to which the plaintiff excepted.
The plaintiff declining to plead farther, or amend his reply, judgment was rendered for the defendants.
The affidavits or petitions on which the defendants were admitted to defend are set out in a bill of exceptions; the question is reserved, as to the correctness of the action of the circuit court in thus allowing them to defend, and that is the first error properly presented for our consideration. This is a question of practice, and one of some importance: The statute, 2 G. & H. 147, sec. 186, authorizes any creditor of the defendant, upon filing his affidavit and written undertaking, as required of the attaching creditor, at any time before the final adjustment of the suit, to become a party to the action, file his complaint, prove his claim or demand against the defendant, and have any person summoned as garnishee, or held to bail, and propound interrogatories to the garnishee and enforce answers thereto, in like manner as the creditor who is plaintiff But after a creditor has been thus admitted as a party to the action, can he dispute the claim of the attaching creditor, and can the attaching creditor controvert the correctness of his claim? It is evident that in such cases, where the attached property will not pay all, each creditor has a direct interest in seeing that no more of any claim shall be allowed than is justly due. There must be some mode by which this can be prevented. If it cannot be done in the attachment proceeding, it should be allowed in
“Judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.” 2 G. & H. 218, sec. 368.
In holding that the court may allow one or more of the creditors to controvert the claims of one or more of the other creditors, when the defendant does not make a bona fide defense, we think we are but carrying out the spirit of the code, which seeks to settle, as far as possible, all questions which may properly arise between the parties in the same suit. The restraint which will result from a fear of incurring the expenses of the litigation will prevent causeless defenses. In this case, it was stated, under oath, in the application to the court for leave to defend, that the defendant was not appearing .and would not defend, that there was a valid defense, etc. We think the court did not err in allowing the .•defense ±0 be made. See Fletcher v. Holmes, 25 Ind. 458.
The demurrer to the reply was therefore correctly sustained.
The remaining question is as to the sufficiency of the second paragraph of the answer, to which a demurrer was filed, and which was overruled. The paragraph of the answer in question shows that the company and Lucas, the agent, had not complied with the requirements of the statute,
In the case of Barney v. Daniels, referred to above, this court decided that an action would not lie against the agent and his sureties on their bond in favor of the express company, for moneys received by the agent, while acting as such, for services rendered by the company, the company not having complied with the statute.
In Daniels v. Barney; Same v. Wells, 22 Ind. 207, this court said, in treating of the question as to the liability of the agent for the money received, notwithstanding the illegality of the business out of which it grew; “ It may be that if this suit had been brought against the agent himself, upon an implied assumpsit to pay over money received to the use of his principal, it would have rested upon a principle free from doubt. But this is not such a suit.” And in Barney v. Daniels, 32 Ind. 19, the court said, “Itmust be remembered that this is not a suit against the agent for money had and received to the use of the principal; but it is a suit on the bond against the agent and his sureties, to recover money received by the former in the transaction for the principal of illegal acts.” These statements sufficiently show that the court did not in those cases intend to decide against the right of the principal to recover against the agent, in such a case, for money had and received.
We doubt very much whether the legislature intended, in the enactment of the statute in question, to produce or sanction any such consequences as that the agent, after having received the money of the principal, and after the transaction between the principal and third persons was completed, should be allowed to repudiate the agency and keep the money, applying it to his own use. The obligation of the agent to account for the money is separate and distinct from the contracts of the company with third persons, which were the subject-matters of the statute. To hold that the agent is not bound to account for the money received by him, is to sane
But the question in this case is whether the agent is liable, where the action is not on the bond, but is for money had and received. “If money have been actually paid to an agent for the use of his principal, the legality of the transaction, of which it is the fruit, does not affect the right of the principal to recover it out of the agent’s hands. For though the law would not have assisted the principal, by enforcing the recovery of it from the party by whom it was paid, because it is the policy of the law not to aid the completion of an illegal contract, yet, when that contract is at an end, the agent, whose liability arises solely from the fact of having received money for another’s use, can have no pretence to retain it.” Dunlap’s Paley’s Agency, 62.
Judge Story, in his work on Agency, sec. 347, says: “If money due to a principal on an illegal transaction should be paid over to his agent for him by the party from whom it is due, it has been held that the principal may recover it from the agent; for the contract of the agent to pay the money to his principal is not immediately connected with the illegal transaction; but it grows out of the receipt of the money for the use of his principal.”
We have examined the cases, on the authority of which these eminent authors have thus laid down the rule applicable to the question under consideration, and are satisfied that it is correct. But see Brooks v. Martin, 2 Wal. 70; Farmer v. Russell, 1 B. & P. 296; Murray v. Vanderbilt, 39 Barb. 140.
We think the agent is estopped to dispute the title of his
We are of the opinion that the second paragraph of the answer contained no sufficient defense to the action.
Judgment reversed, with costs, and the cause remanded.
Petition for a rehearing overruled.