
    Moses Dow, Junior, versus James Prescott, Esquire.
    An attorney, who has received money due to his principal, with directions to pay it over, pursuant to an agreement [between the principal and himself] with a third person, may be compelled to pay it to his principal at any time before he has paid it over to such third person [whenever the plaintiff may rescind the agreement],
    * Assumpsit for the sum of $900, had and received [*419] ay the defendant to the use of the plaintiff.
    At the trial, which was had upon the general issue, before Jackson, J., April term, 1814, it appeared, that the defendant, in the year 1814, received about $ 836 upon an execution in favor of the plaintiff against one Smith, as surety of one T. Andrews, in a recognizance entered into by them for the treble value of certain goods, said to have been stolen from the plaintiff, and knowingly received by said Andrews.
    
    The defendant had brought into the Court of Common Pleas, in a former stage of the cause, the sum of $286.67, upon the common rule. As to the residue, the defendant contended that he was entitled to retain a large sum for his services, and for sundry expenses paid by him in the prosecution of the suit on the said recognizance, and in other business relating to the said stolen goods ; and that '[*420] *for the balance, if any, he was not accountable to the plaintiff, but to certain persons who were formerly associated in Middlesex for the detection of thieves in that part of the country, and for the recovery of stolen goods.
    It further appeared, in the trial, that, in July, 1802, the said goods were stolen from the plaintiff in the State of Mew Hampshire, near to the county of Middlesex, and one Tuttle was immediately after-wards arrested in Middlesex on suspicion of having stolen the goods, and was confined in the gaol at Amherst, in Mew Hampshire. Two members of said association went to Amherst, with the hope of making some discoveries that might promote the designs of said association ; and one of them, by the name of Symonds, saw the said Tuttle, and so far obtained his confidence as to learn that he had stolen the goods, and the place where they were concealed. These two men found the goods accordingly, and carried them to Groton, where they resided.
    • The said association had previously entertained suspicions of said T. Andrews as a receiver of stolen goods, which were confirmed by the disclosures made at Amherst by said Tuttle to said Symonds ; and they were, therefore, desirous that Tuttle should be released from gaol, and should carry those goods to sell as stolen goods to said Andrews, so as to furnish evidence for his conviction. With this view, having sent for the plaintiff, who lived in Mew Hampshire, three of them went with him to Amherst; and the defendant, at their request, accompanied them ; but he was not a member of the association, and did not know that the goods had been found. They there informed the plaintiff of their project with respect to Andrews, to which he assented ; but they did not tell him that his goods were found, from an apprehension that he might insist on taking them away, and so defeat their design. It was then agreed between those parties, that they should pay to the plaintiff $ 75, which they paid him at that time ; that, if they should recover his goods, or the value of them, from Andreivs, or in any other way, they should pay him as muck [*421] more as, with the said $ 75, * would make up the value according to his estimate, which amounted to $ 278.67 in the whole, and that the association should retain the residue, if any, to their own use. It was also agreed at that time, or in some subsequent communication between the parties, the witness not being certain as to the time, that the plaintiff should receive, out of the money so to be recovered, two dollars per day for all the time he should attend as a witness, in any future prosecution relating to said goods, deducting therefrom the fees that he should receive from the government as a witness.
    
      The said Tuttle was accordingly taken out of gaol, he knowing nothing of these arrangements, but being made to suppose that Symonds was acting with him as an accomplice. The goods were sold to Andrews, who was arrested and gave bail on this and sundry other similar charges, and also entered into the recognizance before mentioned to the plaintiff. Andrews absconded on the day when his trial was to be had on those charges at the Supreme Judicial Court in Suffolk, in March, 1804. At that time the defendant was in Boston, attending said trial, as also the plaintiff, and four or five others who claimed goods as stolen from them and received by Andrews, and three or four members of said association.
    It being then supposed, that the money would be immediately recovered on the recognizances entered into by Andrews, all the said parties met together in Boston, and it was then agreed between the plaintiff and defendant, and the said members of the association, that the plaintiff should give to the defendant a power of attorney to collect and receive what should be due on said first-mentioned recognizance ; and that the defendant, after paying to the plaintiff the said balance due to him for the value of his goods, and his said compensation as a witness, should account for the balance to the said association.
    
    On some communication between the plaintiff and the members of the association, either at this time or on some former occasion, he was informed of all the facts before stated as to the time and manner of finding his goods, and of * their motives [*422 ] for concealing from him the knowledge of those facts, and was made acquainted with all the circumstances relating thereto ; and he then declared that he was entirely satisfied and much pleased with what they had done. The said other owners of stolen goods at the same time made similar agreements with the defendant and the said association, and gave their powers of attorney to the defendant.
    The said recognizance was accordingly put in suit, and, in 1807, the money was recovered thereon and received by the defendant. In July of that year the plaintiff came to Groton to receive his money of the defendant. On stating the account, the plaintiff was allowed all the charges he made for certain expenses paid by him, and for his attendance as a witness, to which sums was added the said estimated value of his goods, with interest thereon from the time the defendant received it, and from the gross amount was deducted the said $ 75 paid him at Amherst, and $ 25 for the fees received by him as a witness, leaving a balance of $ 286.67 appearing on this calculation to be due to him. The plaintiff, at that time, suggested that the said association had gained a great deal of money by this transaction, and asked if they could not allow him a greater proportion thereof; but he did not deny the aforementioned agreement, nor allege that he was entitled to any more. The defendant produced his money in order to pay said balance, when the witness left them, supposing that the business was settled. It did not appear that the plaintiff received said sum ; but in a short time afterwards the present action was commenced.
    Three.witnesses produced by the defendant were members of said association at the time when said goods were stolen, and two of them had never left the association. Each of them had executed releases to the defendant, and had received releases from him. They were all objected to as incompetent witnesses by the plaintiff; they were admitted by the judge. "
    [*423] *It was insisted for the plaintiff, that these facts constitu ted no legal defence in this action ; and the judge, intending to reserve the questions of law arising thereon for the consideration of the whole Court, instructed the jury, that, if they were satisfied that such an agreement was made, as before stated, between the plaintiff, the defendant, and the said association, they should find a verdict for the defendant; otherwise, that they should find a verdict for the plaintiff, for the balance of the money so received by the defendant, deducting what was reasonably due to him for his said services, and for moneys expended by him as aforesaid.
    The jury returned a verdict for the defendant, which was taken, Subject to the opinion of the Court upon the foregoing facts reported by the judge ; and, if the Court should be of opinion that these facts did not constitute a sufficient defence in this action, the verdict was to be set aside, and a new trial granted.
    The cause was argued at the last September term in this county by Strong and Lincoln, for the plaintiff, and Bigelow and Blake, for the defendant;
    and at this term the opinion of the Court was delivered by
   Parker, C. J.

The claimed in this action was received by the defendant, as the attorney of the plaintiff, upon an execution in his favor, which issued upon a judgment recovered on a recognizance taken by a justice of the peace, the intent and object of which was, to secure to the plaintiff the treble value of certain goods and merchandise stolen from him, and supposed to have been feloniously received by one Andrews, the principal recognizor, who avoided a trial and forfeited his recognizance.

In the case of Vose vs. Dean & al., it was determined, that a recognizance of this description, entered into before a justice of the peace, is void. The judgment, upon which this money has been received, is, therefore, liable to be reversed; and the present pla.mtiff may be subject to an action by Andrews, to recover back the money paid to him in pursuance of it, or pa'd by any other peí son by his direction * and to his use. He ought, there- [*424] fore, to have the money, to enable him to meet the future demand of Andrews, unless, by some act or agreement of his, the defendant has a right to retain it. The defendant claims to hold it, for the use of certain other persons, who had associated together for the purpose of detecting and bringing to justice persons guilty of larceny or of receiving stolen goods, in pursuance of an agreement made with them by the plaintiff.

The defendant was not himself a member of that association, nor has he paid over the money to them ; but is a mere stakeholder for all beyond his lawful charges and expenditures. He insists, however, that he, being authorized by the plaintiff to pay it over, ought not now to be holden responsible to the plaintiff; who, according to his agreement, has no interest in the money received, beyond what has been tendered to him and brought into court.

We are of opinion that he cannot legally resist the plaintiff’s demand, the money belonging to the plaintiff until the agreement shall be executed. It does not appear that the defendant is legally bound to pay to the members of the association ; nor can they maintain any action against him therefor, after he shall have paid it over to the plaintiff. When it gets into the plaintiff’s hands, the individuals of the association may institute their action ; and then, if the agreement on which they found their claim to the money was a lawful one, they will have a remedy. But the plaintiff has a right to contest the validity of that agreement, with the money in his own hands; and also to defend against their claim upon the ground, that he is, in fact, the mere trustee of Andrews, who has the right to reverse the judgment against him, and recover back the money.

Here was no assignment of the judgment and execution, but a bare permission to the attorney to pay over to other persons ; which, if executed by the attorney, would have discharged him from the plaintiff’s demand ; but which, not being executed, might be countermanded, leaving the persons, who set up the agreement, to enforce it by action.

* This view of the case renders it unnecessary to de- [*425] cide a question, which is presented by the report, and has been much argued at the bar, — whether the agreement set forth is a legal and valid one. For, if the agreement be unlawful, still the defendant is to be considered an agent only, and the plaintiff may recover the money back before the' agreement is executed by paying over to those who, by the agreement, were to receive it. As that question may come up in subsequent actions, it is not proper to decide it peremptorily now.

But we cannot refrain from expressing our disapprobation of a combination, the effect of which was to procure the commission of a new offence, by throwing temptations in the way of a suspected person, with a view to ascertain the truth of the suspicions. Such conduct is certainly dangerous, as it may induce persons, before innocent, to venture into the course of crimes, from having the facility of committing them presented under the guise of confidence and friendship. And, when the parties concerned in such a combination calculate upon a profitable result to themselves, there is occasion to fear they may not always be governed by discretion and public spirit, alone. Nor is it certain that the testimony, upon which convictions are to be had, will not be contaminated by the desire of gain, when it is one of the motives of such combinations.

The verdict is set aside and a new trial granted. 
      
       7 Mass. Rep. 280.
     
      
       If the agreement had been valid and binding on all the parties, the plaintiff’s demand upon the defendant would have been thereby discharged. Wilson vs. Coupland 5 B. & A. 228. — Farlie vs. Dowton, 8 B. & C. 395. — Caxon vs. Chadley, 3 B. & C. 591 — Wharton vs. Walker, 4 B. & C. 165.
     
      
       Vide Chickering vs. Hosmer, ante, 183, and note.
      
     