Spiker v. Nydegger

Stewakt, J., delivered the opinion of the Court. The first and second exceptions refer to the admissibility of Townshend’s testimony. In the first the witness in substance testified, that as to the four executions, the originals of which were not produced, he had made “ the entries ” himself, from information communicated by the appellant. The subject of enquiry was not as to the legal effect of the returns of the officer.

No matter what the character of the “entries,” if from an examination of them the witness was enabled to testify that the appellant admitted that he had received the money, his testimony could not pro ³²⁰ perly be excluded, although independent of the “entries” he’ had no distinct recollection of the fact. The second exception presents substantially the same question, and the ruling below in this, as well as the first exception, is strictly within the decision of this Court, in Martin vs. Good, 14 Md., 409, 410 ; Green vs. Caulk, 16 Md., 572 . In the third exception the appellant complains of the rejection of the five prayers offered by him; and the instruction of the Court in the rejection of the third prayer. By the first prayer the appellant insists that he is not liable, if the evidence establishes the fact that the claims of the appellee were placed in his hands, as constable, for collection.

If the appellant had collected the claims, and held the money of the appellee at the institution of this suit, we are not aware of any law to protect him from paying it over to the appellee, or to bar its recovery from him in this form of action. Holding moneys of the appellee in his hands, which ex cequo et bono he ought to pay over, the law will create an assumpsit on his part to pay the appellee. Vrooman vs. McKaig, 4 Md., 454 . The fact that the appellee may have another remedy against him, on his bond as an officer, for not discharging his duty as such officer, does not preclude him from his election to recover in this form of action for money had and received.

Nor could the Court below properly grant the second prayer.. The claims of W. F. Nydegger were assigned in writing to the appellee, by C. Nydegger for W. F. Nydegger, and C. Nydegger proved that he had verbal authority from W. F. Nydegger to make such assignment. Such authority was sufficient, if proved, and W. F. Nydegger could authorize another, by parol, to assign the claims belonging to him; and payment by the appellant to the assignee, would estop ■ him from recovery from the appellant. The third prayer of the appellant was properly