Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1860-02-25
Ghe Aulpnesialr,
upreme Cours.---Oc,eber Term. 1859.

Supreme COurs.---October Term. 1889.
the rerdict, and enter judgment Of suit against the
Plaintiff.
Decision Of the Court:
This is action Of assumpsit, for money had and re-
ceived to the plaintiffs use, brought to recover one
eighth share of the proceeds of the American whale
ship NLe sold at auction by the Marshal in the month
of February, 1854, upon execution issued in the
suit of Thomas Spencer William Bailey and George
s. Gilbert At the trial. the plaintiff proved that at
the time the ship Nile attached and sold by the
Marshal, to satisfy the defendants judgment against
Bailey and Gilbert he Cthe painti was the owner of
one eighth part of said ship. 1t appeared also that
when the Marshal atlched the ship, which he did by
direction of the defendant, he eiyed from him bond
of indemnity, executed by Spencer principal, and
Harris L. Fitch as surety, which wss subsequently
changed, before the selling of the ship, which done
by the direction of the defendant of Harris T. Fitch
with the defendants knowledge and assent for bond
executed by Fitch as principal and Spencer surety,
the latter having verbally assigned to the former his
claim against Bailey and Gilbert. But the suit was
prosecuted to judgment in the name of Spencer, in
whose name also execution issued, and to whose
attorney the amount of the Judgment, with interest,
was paid by the Marshal out of the proceeds of the
ship, outfits and appurtenances. The whole amount
received by the Marshal from the sale of the ship and
appurtenances Sl3, ,036, 40 out of which he paid
to Spencers attorney the sum of 6640 IA. He paid
also nearly $4,000 for sesmens wages and other claims
against the ship at the United States Consulate together
with the expenses and commits sOns incident the levy
and sale and the balance, $4,000 81, he paid into
Court, as ordered. This amount afterwards re-
duced to $277O SO, by the payment of two claims
against the ship for supplies furnished her sea-
The jury, under the instructions of the Court return
ed verdict in favor Of the plaintiff for 1892 &C. being
eighth part of the paid to Spencer on his exc
cutiOn, with interest thereon and the defendant
moves to set aside the verdict, and enter judgment of
non-suit against the plaintiff certain exceptions noted
at the trial. The exceptions ere as follows:
l. That there was evidence that the defendant
had received any part Of the proceeds of the ship Me-
blt the contrary, there evidence that the
ey paid by the Marshal to Mr. Bates was paid to him
the attorney of another than the defendant and did
not 60 to the defendants benefit in any way.
2. That the Court erred in directing the jury that
the defendant responsible for the conduct of the
Marshal in taking and selling plaintiffs interest in the
ship Nue. as the testimony distinctly proved that the
Marshal acted under the instructions OF Harris Fitch
in selling that property.
8. That the Court erred in not charging the jury,
upon request, that the Marshal not the agent of
the ibellen in the suit in Admiralty Of Spencer
Bailey and Gilbert, but executive officer of the Court,
and if he tOrtiOusy sold the property of the plaintiff
he alone is responsible.
T. That the Court erred in charging the jury that it
was not necessary for the plaintiff to prove that the de-
fendant received the money as Trustee, with the
knowledge of the plaintiff rights in the property out
of which the money made, in other words, that
there must be prvity between the plaintiff and defend
ant to make the defendant responsible for money had
and received
5. That the Court erred in not charging the jury,
upon request, that if they found Tman the owner
of oneeghth of the ship Ne the other eighths
being, by his own showing, the property Of Bailey 4
Gilbert was properly sold to pay SPencers judgment
and that Spencer has not received more than seven
eghths of the proceeds of the sa he has not received
for the use of the plaintiff the other one eighth
The first DOInt. IN clearly unsOund
the evidence being that the amount of Spencers udg
ment paid over to his attorney, MIR. Bates, who
gave his written sept for the money, such atOr
ney and passed the money into the hands of Spencer
| boOk-keeper. The payment by the Marshal to the
plaintiffs attorney payment to the plaintiff him.
self; and the private verbal assignment Of his claim
Harris I. Fitch, or any extraneous disposition which
he may have made Of the money, cannot be allowed to
prejudice the rights Of 1illman.
In regard to the second and third points, we would
remark that plaintiff in execution does not isO acO,
become cotrespasser with the Marshal or Sheriff if
the latter attaches and sells the property of third
party but the plaintiff may by his acts and conduct,
become, in contemplation of law, participation in the
trespass Of the officer, and make himself liable as a
co-trespasser At the trial. of entertained
siderable doubt to whether Spencer had made
him. elf cotrespasser with the Marshal in the sale Of
Tillman's share Of the ship Nile. But have no
doubt whatever upon that point The evidence in the
case shows Spencers participation in the acts Of the
Marshal to have been such clearly makes him CO.
trespasser with the latter, within the ruling in numer-
Gus adjudged The trespass of the Marshal did
not result from his taking possession of the whole ship,
in eyyng under the execution, but from his selling the
share Of TndH along with the interest of Bailey and
Gilbert the judgment debtors In levying upon q
ship, any other chattel, owned in common, the Of
Ger may levy upon the whole, but he sell only the
individual share of the judgment debtor Brown Us.
Hedges, Salkeld. 392 Melville Brown, Is Mass.
Rep, 81 Beaumont Us. Crane, IA Mass. Rep, 400 I;
Lothrop Arnold, % Maine Rep, 1861 By selling
the share of llman the Marshal became trespasser,
ab iaitio. Melville Brown, l5 Mass Rep, 81 /;
Walker Us. Fits, "a Pick. Rep, 194] And Spencer
by giving bonds of indemnity the Marshal, and d-
recting him, or suffering others to direct him.
execution issued at his Spencer suit, to sell the whole
ship and by receiving part OF the proceeds at the
hands of the Marshal, through his attorney Mr. Bates
made himself cO-trespasser with the Marshal, as to
Tillman's share of the property.
With respect to the fourth point, it is well settled in
the Courts of England and the United States, that in
general party whose goods have been taken from him
or detained unlaHfuly, whereby he has right to an
action of respass or troveT may If the Trongdoer sell
the goods and the money waive the tort. atrm
the SALE and have action for money had and receiy
ed to recover the proceeds In such action founded
upon the torous conversion of property. it is not ne
cesssry for the plaintiff to show prvity between him
self and the defendant as in cases purely er eontrde
If the money of the plaintiff has to the hands Of
the defendant wrongfully under such circumstances
that in equity and good conscience he ought not to
tain it, the law upon principles of natural justice raises
an implied obligation upon his part to refund 1t. La
mine rs DOrreil, Lord Raymond Rep, 1915 Moses
U.s. Macfaran, 2 Burrows, 1908 Taylor rs. Plumer,
Maule & Selwyn, 562 Neat ss Harding and Downs,
4 English Law and Equity Rep, 494 Beardslee rs.
Horton, Michigan Rep, 564 Gilman Us. Wilbur. II
Pick Rep, l24 Jones Howe, Pick. Rep, 2s0)
We come now to the fifth point made by defendants
counsel and which involves the main question in the
case viz Did the present defendant, after the sale,
receive the proceeds Of the plaintiffs share Of the pro-
perty or any part thereof: The question here is not
as to whether the defendant, cooperating with the
Marshal ortously took possession of, and sold, the
plaintiffs share Of the property. for the plaintiff now
Waiyes the tort arms the sale and simply for the
proceeds alleging that those proceeds the de-
tendant's hands Neither the Marshal nor the present
defendant is responsible. in ts form Of action, merely
because he was party to the trespass, but only
be held so on the ground Of having actually received
the proceeds Of Tans property, or some part thereof