Arthur Maxwell vs. Thomas R. McGee, 12 Cush. 137

Shaw, C. J. The case presents a rather complicated state of facts ; but we think the question of law, when we reach it, is not a difficult one. It is an action of tort in the nature of trover, for certain specific pieces of gold and silver coin, and of course the question is, who had the right of property in these specific pieces of coin at the time of the alleged conversion ?

We may lay out of the case all question as to the relative rights of husband and wife in personal property acquired by herself, or as to the legal effect of the wife’s lending the money in her lifetime, and taking notes in favor of her two daughters. Both parties here claim the property in the coin as the property of Benjamin K. Peck, or derived through him. The plaintiff claims, as the attorney and agent of Peck, who had collected and received the money on one of the, notes of the defendant given in form to one of the daughters, but paid on a claim of right by Benjamin K.

Peck, and so paid by the defendant to the plaintiff as the attorney of said Peck, under that claim. The defendant claims it as a deputy-sheriff, having attached the coin as the property of Peck, on a writ against him. And, in our judgment, it makes no difference that the defendant himself was the person who borrowed the sum of $250 of Mrs. Peck, and gave his note therefor payable in terms to one of her daughters; he afterwards paid the amount on a claim of right to the attorney of Peck, and took up his note. He thereby acknowledged the right of Peck as the creditor, and discharged his own obligation as a debtor.

The case, therefore, stands on the same footing as if a debt of any other person due to Peck, and in the hands of Maxwell, his attorney, for collection, had happened to be paid in gold and silver, and the defendant, as a deputy-sheriff, had happened to be present with a writ against Peck, and had taken the coin from the table without the consent of the attorney, as an attachment of the property of Peck. The question then is, whether this coin could be attached as the property of Peck; and the court are of opinion that it could not.

The money was paid to Maxwell, the plaintiff; he thereby collected a debt due to Peck, and discharged the debtor; he thereby became accountable to his principal, and liable to pay him, or dispose of the money as he had directed or might direct; and this duty to account and pay over was a chose in action, which was not attached by taking the coin in which the debtor had paid the attorney. No property in that specific coin vested in Peck by that payment.

Money has no ear-mark; in this instance, the coin was the currency in which the attorney received the debt, but it would not vest the title to the coin in the creditor, unless it was put into his possession, by being paid to him. We do not mean to say, that the money of a debtor may not be attached by an officer, if he can find it and take it without committing a trespass ; no doubt it may be. Sheldon v. Root, 16 Pick. 567; Thompson v. Brown, 17 Pick. 462; Rev. Sts. c. 97, § 20. But in this instance it had not become the property of Peck.

We do not place this decision on the fact that, in this case, the plaintiff, with the consent of Peck, had become liable to pay part of the proceeds to Hays, who produced the note and delivered it to him, and who had some claims upon it, which were sanctioned by Peck, the debtor though this fact illustrates the position. But independently of this, Maxwell, by receiving the money as the attorney of Peck, became liable to account to him for it. He might have claims upon it, for his own fees or for charges to others. He might discharge his liability to his principal, by paying him in any lawful currency.

The money was not strictly that of Peck till paid over; but the identical pieces of money collected are not necessarily to be paid over to him. Until that be done, his right is a chose in action. Dubois v. Dubois 6 Cow. 497. The attachment was a nullity, and the officer took no special property by it in the coin. Judgment for the plaintiff.