Lead Opinion

FROM BELKNAP CIRCUIT COURT. The statement of facts is somewhat meagre. It appears, however, that the defendant was not employed by Wadleigh at his own private cost, and that the bill for his services was recognized and admitted by the governor and council as one which the state was bound to pay. It certainly follows that, up to the time Wadleigh obtained the funds from the state treasurer on the governor's warrant, he owed the defendant nothing, and could not be held as his trustee.

Was the defendant's claim against the state paid and discharged when the treasurer's check was handed over to Wadleigh? That depends upon whether Wadleigh was acting as the private agent of the defendant and the fish wardens in collecting their bills against the state, or whether he was acting in the matter in his official capacity, and in that capacity was entrusted with the funds of the state to pay for services rendered the state by his procurement, and in aid of the business of his office. Upon the facts stated, I am inclined to think the latter view is the correct one, and that the trustee must be discharged.

Concurrence Opinion

It is incumbent on the plaintiff to make out his case against the trustee, and in this case to make it more probable than otherwise that the money in his hands is the money of the principal defendant. I cannot see the evidence of this fact. I see nothing which tends to show that the trustee acted as the agent of the principal defendant. I infer that it was part of his official duty as commissioner to receive this money and pay it over to the principal defendant, and that until this is done the claim against the state will not be discharged.

It appears that this trustee cannot be charged.

Concurrence Opinion

I am of the same opinion. Upon the facts stated, Wadleigh appears to have acted in his official capacity in receiving the funds from the state.

Trustee discharged. *Page 212