Murdock v. Aikin

By the Court, Johnson J. The only question presented by this case is, whether the defendants are liable to an action at the suit of the plaintiff to recover the moneys in their hands, which had been collected and placed there, for the purpose of paying the interest of the debt due by the town. The plaintiff was nonsuited at the circuit, on the ground that there was no privity between him and. the defendants. The money was paid to the defendants in pursuance of the requirements of the statute. And the statute made it their duty to pay the money thus in their hands, in satisfaction of the interest due upon these obligations of the town. (Sess. Laws of 1852, ch. 375, p. 593, § 4.) The defendants were public officers, with money in their hands, which had been collected and paid over to them for the express purpose of being applied upon these obligations, and for no other purpose. I do not see why the action does not lie in favor of the respective bondholders, against them. An action for money had and received lies against a sheriff, for money collected by him, in favor of the person for whom the money was collected. This is well settled. (Shepard v. Hoit, 7 Hill, 198. Armstrong v. Garrow, 6 Gowen, 465.) These cases, I think, establish the principle that when it becomes the official duty of any one to pay over money in his hands to an individual, in satisfaction of a particular debt or demand, an action of assumpsit lies if he neglects to pay it over. In the case last cited, Chief Justice Savage said, “the action is recommended by its simplicity, and should be encouraged, where the defendant is in no danger of being misled.” [67] There is quite as much privity between the plaintiff and these defendants, as there is between a plaintiff in an execution and a sheriff! In either case the privity is of law, and not of contract. It is founded upon the right on one hand and the official duty on the other. And this, it seems, is sufficient to support assumpsit without any promise other than what the law implies. In this case the money was collected by tax to pay a debt of the town to the plaintiff, and I see no reason why the plaintiff has not just the same right to it that he would have had it been collected by the sheriff upon an execution against the town, after judgment in his favor. And certainly, the official obligation of the sheriff to pay over money collected by him on execution, is no stronger than that which the statute expressly imposes upon these defendants. It is manifest that the town had lost all control over this money, and was not able to give it any other direction. In this respect it is clearly distinguishable from the, case of Seaman v. Whitney, (24 Wend. 260.) That was a case where the money was still the money of the debtor, in the hands of his agent, when the action was brought. It had not become the money of the creditor by any promise of the agent, or acceptance by the creditor, and the debtor might still apply the money in any other way as he should see fit. But it is different where money is collected by an execution or collector’s warrant. There the debtor loses all control over it. It is in the custody of the law, and the debtor cannot interpose, in any respect, to direct or control its application. [Monroe General Term, September 6, 1858. Welles, Smith and Johnson, Justices.] The judgment must therefore be reversed and a new trial granted, with costs to abide the event.