Young v. Hyde

14 N.H. 35

Opinion

Parker, C. J.

An action of trespass by the present plaintiff, against H. A. P. B. Hyde, the captain who issued the warrants, was the proper form of action in which to recover the money paid by him in satisfaction of the fines, if he was not in fact liable to be so fined. Even if it be assumed that the sum so paid by him might have been recovered in assumpsit, as for money had and received, the condition of the bond does not specify that the money should be recovered in such an action, but the language is, “ shall prosecute said Henry, for the recovery of any sum so paid;” and this can be interpreted in no other way than that the parties contemplated a recovery of the money in any form of action proper for the purpose. Trespass was substantially an action for the recovery of the money paid by the plaintiff, and under the circumstances of this case, the measure of damages must have been the amount of money so paid ; thus the other part of the condition, viz.: to “ obtain judgment against said Henry, for the same,” was also literally complied with. The defendant’s objection, then, is merely formal, and ought not to prevail. There must be

Judgment on the verdict.