Ulmer v. Paine , 1 Me. 84 ( 1820 )

Preble J.

afterwards delivered the opinion of the Court as follows.

The defendant is the stakeholder of two thousand forty-nine dollars fifteen cents, part of the proceeds arising from the sales of the Schooner Industry and cargo prize to the private armed Schooner Fame. This amount was paid to the defendant in consequence of a controversy having arisen between the plaintiffs on the one part, who are such of the part-owners of the Fame as fitted her out for the cruise, and Gleason and Pope on the other part, the two remaining part-owners -who refused to aid in fitting her out, respecting the claim of Gleason and Pope. to share in the prize money. The defendant, being general Agent for the owners and crew, received the stake, being the amount of the claim in controversy, and by a written memorandum by him signed, agreed to hold it “ until it is legally de- “ termined whether the said sum belongs in any part or the whole to said Gleason and Pope or either of them, or whether it belongs to “ the other owners.” Without having taken any measures to have it judicially or legally determined to whom the money belonged, the plaintiffs made their demand upon the stakeholder, and, on his declining to pay the money over to them, commenced the present action.

it could not, we think, have been the intention of the parties interested, that Paine, by accepting the stake, should subject himself to the expense and vexatious of a lawsuit to settle a controversy between the part-owners of the Fame,—a controversy in which Paine had no interest. Without doubt Paine might have assumed this burthen; but we apprehend from a fair construction of his agreement he did not intend so to do. In the case of Kerr v. Osborne cited from East, the stakeholder received the money by consent of all, but in trust and for the use of the person who might be legally entitled to it. He received it generally,—for the benefit of whomever it might concern. Of course if the party entitled .made his demand, and the stakeholder refused to pay, he thereby rendered himself liable in an action for money had and received. In the case at bar the express written stipulation on the part of the stakeholder is to hold the money until it is legally determined to whom it belongs. There the stakeholder was to pay or refuse to pay at his peril. Here he is not to pay until the question of property is legally determined. The remedy open to the plaintiffs is plain and adequate. The Court, before whom the decree of condemnation as prize was had, may on proper application cite all the parties in interest before them; and by a supplemental decree legally determine the question of property. Home v. Camden, 2 H. Bl. 533. The Dash, 1 Mason 4. That question never has as yet been determined; and that it has not, is the neglect of the plaintiffs. Until it is so determined Paine would not be justified in paying over the money.

We are therefore of opinion with the learned Judge who presided in the trial that this action was prematurely brought and accordingly the nonsuit is confirmed.

Motion to set aside the nonsuit overruled.

Note. The Chief Justice, having formerly been of counsel with the defendant in this cause, gave no opinion.