Year: 1860

1t is clear that Tman's share came to the hands Of
the Marshal because he received the loLs proceeds
arising from the sale Of the ship and her appurteuances
but IT argued the part of the defendant that as
he received from the Marshal only part Of the pro-
ceeds, not amounting eighths he did not re-
ceive the one eighth belonging to Tman or any Dor.
ton thereof, and that his share still remained in the
hands Of the Marshal, and was paid into Court


The facts of this case such probably arise but
very seldom and We regret that have been able
to find reported case precisely parallel for the circum-
stances Of this such afford fair ground for
the ingenious argument of the defendants counsel If
the plaintiff had owned the whole Of the shin Nile his
right to from the defendant the mart of the
proceeds thst came to his hands would be plain Or
if the defendant had received al the proceeds Of the
ship and appurtenances, the plaintiffs right to recover
his share from the defendant would be clear.


1t is true, as eOnended BY the learned counsel for
the defendant, that he had right demand from the
Marshal sufficient sum out of the moneys levied nm
der execution TO satisfy his Judgment against Bailey
and Gilbert. But that does affect the question now
to be decided, because the defendant would have hsd
that right against the Marshal even if Tllman had
| claimed to be the owner Of the whole property II
Tllman had received either in person or through his
agent eighth Of the proceeds Of the property from
the hands of the Marshal before the payment Of Spen-
Judgment, then clearly it could not be said that
the latter had received any part Of Hllman's money
Or if Tman had assented to the payment of Spencers
judgment out of the gross fund.- relying for his share
upon the balance paid into Court the like result would
follow. But Tllman never assented to such payment
nor to any division application whichever, by the
Marshal, Of the proceeds of the property sold and
after mature reflection, all Of the opinion that
the defendant, by receiving part Of the gross undi-
vided fund.- must, according law and sound reason
be held TO have received proportonate amount of the
undivided share which belonged to the plaintiff, who
has right to follow and reclaim in the defendants
hands The verdict rendered in favor of the plaintiff
is not for eighth of the whole proceeds rs claimed
by him. but only for eighth Of the which acu-
ally came to the defendants hands, together with inter-
est, and that we think is just and legal


As the motion to set aside the verdict and enter
nOnsut is motion addressed the sound discretion
of the Court controlled by legal principles we think
the last argument urged by the plaintiffs counsel IL
the grounds which have already given for refusing
the motion Of themselves sufficiently decisive
would be deserving of great consideration for so far
as able to at present. discover that
any benefit would result to the defendant by setting
aside the verdict it clear that plaintiff
had mistaken his form of action. We think no injus-
tce is done to the defendant by permitting the verdict
to stand, obtained in this action for money had and
| received.


| The motion is refused.


Let Judgment be entered in favor of the plaintiff as
| Of the last day Of term.


Messrs. Montgomery and Harris for plaintiff.
! Mr.. Bates for defendant.


Honolulu, llth February, 1861.