Stillman v. Isham

Williams, Ch. J. The question is, whether the facts in this case will subject the defendant to the process of foreign attachment. Two objections are made to the plaintiff’s recovery. 1. That no demand had been made, by Congdon, of the money. 2. That the character in which the defendant received the money, must protect him from suits of this kind. If the decision in Wilder v. Bailey & al. 3 Mass. Rep. 289. is adopted, it would seem to terminate the case upon the first point. But as the court are [127] perfectly satisfied, upon the second objection, that the decision below was correct, their opinion is founded entirely upon that. The process of foreign attachment was originally designed to prevent a debtor from fraudulently placing his goods and chattels beyond the reach of legal process. The statute of frauds was designed to prevent the fraudulent conveyance of property; this statute, the fraudulent concealment of it. Being made to prevent fraud, a liberal construction has been given to it; in consequence of which, the statute has had a very extensive and beneficial operation. But while the court are desirous to continue the liberal construction which has been given to this statute, they must not extend if, to cases not within its spirit, by which others who are in the execution of public trusts, would be subjected to serious inconvenience. It was many years since adjudged, by the superior court, that this process could not be sustained against a loan officer. Spalding v. Imlay, 1 Root 551. And this has ever since been re-cognised as the law of the state. It has also been holden, by this court, that an administrator or executor could not be made liable to this process, although the deceased was indebted to the absconding debtor, or had given him a legacy by his will. Stanton v. Holmes, 4 Day 87. 96. Winchell v. Allen, 1 Conn. Rep. 385. Similar decisions have been made in the state of Massachusetts, on a statute very similar. Brooks v. Cooke & al. 8 Mass. Rep, 246. Barnes v. Treat & al. 7 Mass. Rep. 271, it has also been decided, in the same state, that the county treasurer could not be subjected in this process, for the fees clue to a juror in bis hands, Chealy v. Brewer & al. 7 Mass. Rep. 259. So in Pennsylvania, it has been held, that money in the hands of a prothonoiary, could not be attached. Ross v. Clarke, 1 Dal. 351. So too, under the custom of London, it is said, that property in the hands of government and its agents, as the public funds and dividends duo thereon, cannot be attached. 9 Petersd. 714. n. The pervading principle, in all these cases, is, that public officers, who are bound to transact the public business, by certain rules, and in certain forms, shall not be exposed to the expense, the inconvenience and hazard incident to this process. It is apparent, that if this process is allowed, it must destroy the simplicity of the mode of accounting. Instead of the receipt of the person who is entitled to the money, the officer must produce [128] verify the process under which it was paid. He must then run the risk of any mistaken opinion as to its legality, or await Stillman slow proceedings of judicial decisions. He may have to meet and decide upon conflicting claims of creditors as to their priority and may be called to appear in remote parts of the state, to the injury of the public business, with some expense and great inconvenience to himself. These These objections exist in the case of all public officers, wheth- er they are loan officers, county treasurers, administrators or state’s attorneys. Upon principles then well settled, the plaintiff cannot recov- er, unless he can shew, that this money was not received or holden, by the defendant, in his public capacity. This, the counsel for the plaintiff has attempted to do. It is said, that the prosecution having terminated against Mason, and he be- ing ordered to pay over thus money to Congdon, the official duty of the defendant to the government has ceased. As the attorney of the state, he commenced the prosecution against Mason. He acted in the same capacity, when he instituted a suit upon the bail bond. While pursuing that suit, he receives an order from his employer to pay that money over to Cong- don. This is no discharge to him from the service of the state. It is a mere direction to him how he shall execute his duty in that service. He is as much bound to account to the state as ever; but Congdon's receipt will be as good upon settlement of the account as the treasurer’s would have been before. In short, the state has only designated where this money collected by him may be paid. It places him, as to this money, precisely upon the same ground with the treasurer. It may be paid ei- ther by him, or the treasurer, to Congdon. The defendant, then, can no more be liable to this process than the treasurer would have been, had the money been paid over to him. The defendant then collected this money, as the agent of the public. As the agent of the public, he held it. As such, he must account for it. And he ought not, then, to be subjected to the conflicting claims, which may arise among the creditors of an individual, to whose use the state may have appropriated it. There can, therefore, be no new trial. Bissell and Waite, Js. were of the same opinion. opinion. [129] Church and Huntington, Js. gave no opinion; the former not having been present when the case was argued, and the latter having been consulted in a similar cause. New trial not to be granted.