
    HICKMAN, PAYMASTER &c. vs. HALL’S ADMINISTRATORS, &c.
    
      From the Franklin Circuit Court, the Hon. Henry Davidge sole Judge.
    
    
      Forbes, for plaintiff; Talbot and Swigert, for defendants.
    June 14.
    A bill in equity to recover back the amount of a debt paid by a security, sustained, under peculiar circumstances, and because it had beenprepag butlof°1"' which the seourit7was ighe "paid ithSn
   Opinion of the Court,

by Judge Owsley.

William Hall was appointed sheriff of Franklin county, and, together with his sureties, William Trigg and Christopher Greenup, executed bond, conditioned as the law directs, for a faithful discharge of his duties as sheriff.

Whilst Hall was acting as sheriff, there were placed in his hands for collection, by the commandant of the twenty-second regiment of the Kentucky militia, fines to the amount of two hundred and seventy five dollars, for which Hall gave a receipt to the commandant. Hall afterwards resigned his office as sheriff,' and the militia fines were by him delivered over for collection to his successor, John A. Mitchell; and he thereafter collected the fines, and paid the amount on settlement, to the paymaster of the regiment. The receipt which was given by Hall, was, however, not taken up, and on a change in the paymaster of the regiment, was delivered over to the successor. This receipt was after-wards put in suit by the paymaster, against Trigg and Greenup, the sureties of Hall, (he having previously departed this life,) and judgment was recovered against them for the amount thereof and costs.

The responsities'ofare^'" mentai pay-1" master disdeoree direct* jng the payment of a °laim a§ainst ou® 0rfe^™ent first funds received.

e the com'mandan.t of tho ^n^the-paymaster in favor of the £ÓTaffer,t°hi‘ (¡jca 113 court ofequity-

Where mo_ ney has been advanced to ^¿o'laysU out in necesaries, a court who advanced it inf him^vho furnished the no-. cessaries, and a orc re !e ’ Under the act subjecting chases in action to the payment of debts, the persons who ■ have funds in their hands, being made defend ants, should be served with process, before a decree is rendered against them.

Upon this judgment, execution issued to Bourbon county, where Trigg resided, and the amount thereof was paid by him, and the same has since been applied by the paymaster to the benefit of the regiment. Since then, another paymaster has been appointed, against whom, and against Lewis F. Stevens, Zachariah White and Thomas White, who are alleged to have in their hands, money belonging to the regiment, this bill in equity was exhibited by Trigg and the administrators of William Hall,.deceased. They set out in their bill the preceding tacts, and state that when the amount of the execution was paid by Trigg, they had no knowledge of the fact of Mitchell having paid the amount of the receipt which was given by Hall, the sheriff; but they allege, that they can now establish the fact by unquestionable, evidence. They also suggest, that the present paymaster has no funds of the regiment in his hands; but refuses to repay the amount of the demand, even were funds in his hands. They allege that the other defendants have money in their hands belonging. to the regiment, which will shortly be paid over to the paymaster, who will dispose of the same to the creditors of the regiment, whose claims have originated since the money was paid by Trigg, unless prevented by the interposition of the chancellor. They prayed for and obtained an injunction, restraining the dants, who are alleged to have the funds of the ment in their hands, from disposing of the same, until the further order of the court, &c. They also asked the appropriate relief to be decreed, on a final hearing of the cause, &C. ,

Neither of the defendants answered, and on a final hearing, the court decreed the paymaster to pay the complainants the sum of $299 34, the amount paid by Trigg, and also, $62 86, the amount of interest on the sum ¡laid, up to the time of entering the decree, and ordered the paymaster to make payment out of any money in his hands, or which might come to his hands, without regard to any other claims which might exist against the regiment. The other defendants'were also decreed to pay the amount of money in their hands, which belonged to the regiment, after deducting their commission for collection; which sum, when paid by those defendants, was ordered to stand as a credit for the paymaster, on the amount decreed against him.

Assuming the facts to be as they are charged by the complainants in their bill, it cannot be denied, but that in equity and good conscience, Trigg ought to be repaid the amount of the money, which, under the judgment against him aiid Greenup, he was compelled to pay. It is true, the judgment was rendered hv a court of competent jurisdiction; but it is alleged to have been rendered upon a demand which had been previously paid, and paid too in a way, which, from the nature of the transaction, Trigg cannot be presumed to have had any knowledge, and as he alleges he was totally ignorant of when the judgment was rendered against him, and the money again paid by him.

Unless, therefore, there be something in the peculiar circumstances of this case, which distinguishes it irom the ordinary case of a complainant seeking the aid of a court of equity, to obtain remuneration for money paid under the judgment of a court, which is afterwards discovered by him to have been previously paid by another, Trigg, upon the hypothesis of the facts alleged in the bill being true, is indisputably entitled to relief.

The circumstances are not, however, perceived, which, in the opinion of the court, forbid relief in this case. We know that the money paid by Trigg, is alleged in the bill to have been paid over to the regiment; but that circumstance assuredly cannot absolve the regiment from liability. After paying over the money which he received from Trigg, to the creditors of the regiment, the paymaster, no doubt, would not, in his personal right, be liable to the demand of Trigg, unless before the money was paid over by him, he knew of Trigg’s equity; hutas the money was applied by the paymaster to the satisfaction of debts owing by there» giment to others, the regiment has been gainer by the money unjustly received from Trigg, and in equity and justice, has thereby become the debtor of Tiigg.to the amount received from him.

We admit that the law has furnished no remedy in favor of anv person against a regiment, in its character of regiment; hut the law does, in language not to be misunderstood, recognize the regiment as a debtor, and lias given to the creditors of the regiment, the right of suit against the paymaster, through whose hands all the funds of the regiment are directed to pass.

Thus, in the thirty-second section of the militia law, (2 Dig. L. K. 399,) it is provided that “the regimental paymaster, before he acts as such, shall enter into bond witb sufficient security, in the county court, to the commonwealth of Kentucky, in the sum of one thousand dollars, conditioned, &c ; which bond shall not be void on the first recovery.” And in the thirty-fourth section, it is provided, that “the paymaster shall, in settling claims, pay respects to seniority, and that a younger claim shall not lie settled until those of an elder date are paid off;” and the forty-fifth section gives to those whose demands are not paid by the paymaster, remedy by motion, &c. The nineteenth section of an amendatory act, (2 Dig. L. K. 927) provides, that “it shall be the duty of the paymaster or paymasters of the regiment or regiments from which a new regiment may have been or shall hereafter be formed, to liquidate, in presence of the paymaster of saiil new regiment, the accounts of the same, taking into account all debts due or to become due, in favor of, as well as those against said regiment or regiments, at the time of formation, having regard to colours, drums and files, in the possesion of either, and if it shall appear that there is a balance in favor of the new regiment, it shall lie paid over to the paymaster of the new regiment, in proportion to the number taken from the old regiment; but if it shall appear that the old regiment has a debt against it, then, and in that case, the new regimental paymaster shall assume a proportionable part of said debt, and pay the same under the rules and regulations now prescribed by law respecting seniority of claims.”

It is true, that in another section of the law, it is made the duty of the commandant of a regiment, to draw orders on the paymaster in favor of such as may hav« claims against the regiment, ami in this case, no such- or<^el' ^las been drawn; hut if we are correct in supposing that the regiment has in equity become the debtor of Trigg to the amount of the money unjustly received from him. it is not perceived how the failure of the commandant to draw in his favor cm the paymaster, can affect his right to apply to a court of equity. If the demand of Trigg was of a purely legal character, there might be some plausibility in contending that his remedy would properly be in a court of law, to compel the commandant of the regiment, by mandamus or otherwise, to give an order for the amount on the paymaster; but as the money was paid by Trigg under the judgment of a court of competent jurisdiction, he could not be redressed by any proceedings in a court of law—his only remedy is in equity. Mis money, which has been taken and applied to the payment of the debts of the regiment, may well be considered in the contemplation of a court of equity, as placing him in the condition of those whose debts have been thus paid; as one who advances money to an infant, who lays it out in necessaries, will, in a court of equity, fie permitted to stand in the place of him who has furnished the infant with the necessaries, and to recover of the infant the price of the necessaries, when at law he could not do so.

Tims considered, Trigg must be a creditor of the regiment, prior to those whose debts are still subsisting and unpaid, and must, of course, be entitled to a preference over them in a court of equity.

Hence, we conclude, that assuming the facts alleged in the bill to be true, Trigg is entitled to he compensated for the money advanced by him, out of the funds of the regiment, and that it was proper for him to apply to a court of equity for that purpose.

We are also of opinion, that it was proper, under the act of this'eountry subjecting dioses in action to the payment of debts, for the complaiuauts to make those persons who are alleged to have money of the regiment in their haiTds, parties; but as the process appears not to have been served upon two of them, it was premature to hear the cause and pronounce a decree in favor of the complainants.

The decree must, therefore, be reversed with costs, and in the opinion of a majority of the court, (Judge Mills dissenting,) the- cause must be remanded to the court below, and further proceedings there had, not inconsistent with this opinion.

Dissent of

Judge Mills.

The history of this case may be thus abridged: A •receipt of a sheriff, for fines put into his hands to collect, came into the hands of the paymaster of a regiment. As was his duty, he prosecuted the sureties of the sheriff, lie being dead, and recovered the money, and in still further prosecution of iiis duty, paid out the sum collected, in obedience to the orders of courts martial and the commandant of the regiment. It has since been discovered that the same fines were accounted for to a former paymaster, by a sheriff appointed as successor to the deceased sheriff, and appropriated by such previous paymaster, in discharge of the debts due by the regiment. Since then, new fines have been assessed upon the delinquents of said regiment, which are in a train of collection, arid which are .already appropriated by law, to discharge the current ex-pences of the regiment, according as the courts martial and commandant shall order.

Although, in former years, a sum of money has been recovered by, and appropriated to discharge the debts of the regiment, it must be evident that neither the courts martial nor commandant have any power by law, to appropriate the present fines for the purpose of restoring this money formerly recovered by mistake. The reason is obvious. The present fund is raised for particular purposes, which are pointed out by law, and which circumscribe the duties of the present courts martial and commandant, and among (hose purposes the restoration of the money so wrongfully recovered formerly has no place, and the present courts and commandant have no power or direction by law to make such appropriation. If they had, and refused to do so, no reason is perceived, why the law does not furnish an adequate remedy, without resorting to a court of equity. They must be subject to mandamus, to compel such appropriation, if any remedy exists; and the right or power of the chancellor, exercised, not to compel them to appropriate, but to appropriate at once, and direct the present collected fund to go in a channel contrary to law, is seriously contested. It is permitting the chancellor to change the appropriation made by law, t0 substitute the powers of the courts martial and regimental commandants, or allowing him to act as a revising court, over their transactions. Indeed, the former is more properly the case; for the hill and whole proceedings had, are not predicated on the ground that the courts martial and commandant have refused, and therefore the chancellor must interfere; hut the ground of equity is predicated on the fact that the present funds now in collection are apprepriated by law to other purposes, and that if they once come under the power of the courts martial or commandant, they must go to those other debtors to whom they are due f>v law, on account of the expences ofthe regiment payable by law. It is, then, asking the chancellor to prevent the commandant and courts martial from doing what by law they are bound to do, to dispense wit!) the statutes which speci'y the purposes to which the fines are to go, because formerly the complainants were wronged by the innocent and mistaken acts of the officers of the regiment, while they supposed they were doing their duty. Such a power, it is conceived, does not belong to the chancellor.

If any decree ought to be here rendered in favor of the complainants, it ought to be either against the paymaster individually, or in rent, against the funds of the regimentsince assessed and now collected. A decree against the paymaster individually, it is admitted, cannot he made. Even the bill itself does not ask it. It charges him with no act calculated to reach his own estate. If he had known that the former fines collected by him had been collected by a former paymaster, and had abused his office and the process of law, so far as again to recover from the ignorant ami innocent sureties of the sheriff, the money a second time, for his own emolument, there could he no hesitation in compelling him to restore if. He, however, has done no such thing, and therefore no suit subjecting him individually will lie. If, then, the paymaster himself cannot be individually made liable, what inference favorable to the suit can he drawn from the fact that the legislature has required him to give bond and security, and made him suable thereon? If he does give bond, it is to hind him to perform his duty as directed by law, and not the decrees of the chancellor. If he can be sued upon bond, it is to make him individually responsible; and in all the suits against him, directed or hinted at by the statute, he is to be individually responsible for failure of duty, and no judgment can be rendered against him in his character of paymaster, for the funds of the regiment. What argument, then, can be drawn from this circumstance, to sustain a suit confessedly not against him individually? If he is suable individually for those breaches, does it follow that he is suable as garnishee holding the regimental funds? If his own estate is subjected, does it follow that the funds of the regiment can be subjected also? It is conceived, then, that his liability to suit individually, furnishes no ground for reaching the funds of the regiment.

As the paymaster is not individually liable, and as the subjecting him to suit cannot subject the funds of the regiment, the question remains, can those subsequently assessed, and now collected funds of the regiment, be subjected by a decree? It is conceived not. The regiment itself is a body capable of constant succession and change, both as to officers and men. Individually, therefore, it may now be wholly different from what it was when the money formerly collected wrongfully discharged it debts. The individuals composing a regiment, have no interest in the fines collected. They are generally assessed and collected in invito, and the creditors who contract on the credit of the fund created by fines, in military services, have the only interest. If the regiment itself had formerly received any individual benefit from the appropriation of money wrongfully collected, there might be some colour of equity for saying that the fund now collected for their benefit should be appropriated to the benefit of the former sufferei’s, who were compelled to pay the money wrongfully; but as the former and present fund both are not for the benefit of the regiment, no equity exists against the regiment itself. Nor is there any connexion perceived, or latent equity existing between the two sums, to wit, that wrongfully collected and appropriated, and that collected now for specific purposes. Surely no secret lien can follow and attach itself to subsequent fines. They are entirely distinct. One was wrongfully gotten, and given to a then existing class of creditors; the other is assessed and collected for another and different class. There is no connexion, ^en? on which a decree can be founded.

If a county court, in laying its levy, should refuse to allow a claim palpably just and equitable, which it had the power to allow, but did not, and proceeded to lay the county levy only adequate to satisfy other claims ■which might arise, could the chancellor, in such case, sustain a bill, and seize upon the money laid, and divert it from other creditors, to satisfy this just but rejected claim? It is conceived not, and the case is stronger than the one before the court; for here, it is strenuously insisted that neither the commandant nor court martial have any power to allow this claim out of the present fines, as the county court has, in the case supposed, and the control of the chancellor is not greater over a regiment, than over the county court. The treasurer keeps the money of the state, and gives bond and security for appropriating it as directed by law, and it is subject to suit individually, for failing to 'do so; but this does not give the chancellor any power to decree the money itself to other^purposes. The auditor may be said to keep the key of the treasury, and gives bond and security not to open it contrary to law. He may be made responsible individually, for an abuse or breach of his duties; but this does not give the ■chancellor a power to decree him to open it, and to pay a just debt due from the state. If he refuses, when he ought, a mandamus may reach him; but if, on the return thereof, it appeared he had no authority to do so, in satisfaction of the claim, the process would end. The truth is, the legislature has not directed, as the constitution requires, in what court, or how suits are to be brought against the commonwealth; and as the commonwealth cannot be sued in mass, so it is not subject to suit in detail; that is, the various bodies constituted for political purposes, cannot be sued, although, by mandamus, they may, in some instances, be reached and compelled to execute the laws of the land; yet none of them ought to be compelled, by a court of equity, to do what the law does not authorise. Counties have their police regulated by justices of the peace, who, in the county court, represent the county. The money collected and to be expended for that purpose, is not brought to the treasury. Companies, battalions, regiments, brigades and divisions are bodies politically constituted for military purposes, and each expends what is necessary to keep them up, by á police regula-H ted without carrying the money to the treasury, and then taking it back. These bodies ought not to be compelled to pay by suits of this nature. If they, by mistake, wrong individuals, while doing their duty, the legislature is competent to point out the fund and redress the injury, and all just governments will grant such redress. However strong, then, the equity may be, I would turn the party, in this instance, to that department of government, as the most proper to afford redress; and I cannot concur in the opinion that the chancellor has any power over the subject.  