Judgment was rendered in favor of the plaintiff on June 30th, 1926, for $1500 against Spiak. In this action a copy of the writ was left with Chief of Police Smith as the agent, trustee and debtor of Spiak. Smith, upon due demand on execution taken out on the judgment, refused to pay this execution or any debt due from him to Spiak, and on September 1st, 1926, the plaintiff *Page 322 brought this action of scire facias against Smith. It is found that Smith, as chief of police, had in his possession on October 2d 1925, and has since held, certain property belonging to Spiak, taken from a room occupied by him by an officer under a warrant for the the arrest of Spiak for the crime of theft. This property consisted of four postal savings certificates in the name of Spiak, with three $5 bills between green paper of the kind used for swindling, and in a bag in this room one $100 gold coin bill of the United States, one $100 National Bank bill, one $50, one $20 and one $5 Federal Reserve bill, in all $280. So far as appears of record none of the $280 had anything to do with the crime charged, nor was it in any degree necessary evidence against Spiak for any swindling crime referred to in this case. The certificates afforded means of identifying Spiak, the $5 bills between green paper would also be evidence tending to prove a swindling charge against Spiak. The finding does not state that any of this money, not even the $5 bills between the green paper, was necessary evidence in connection with the crime of theft charged. The conclusion of the court drawn from the subordinate facts, that "the defendant as chief of police is not liable by trustee process to a creditor for property taken in making criminal service, and in his hands, held by him to be used as evidence in connection with criminal charges," if meant to state that this property was held for use in connection with criminal charges other than that of theft, is not supported by the subordinate facts. Assuming that the subordinate facts might have justified this conclusion as to the certificates and the three $5 bills between green leaves, they could not justify the conclusion that the $280 found in the bag were necessary for use as evidence in connection with a criminal charge. It is over three and a half *Page 323 years since the chief of police obtained possession of this money. It is over three years since the plaintiff obtained her judgment against Spiak. No suggestion appears upon the record of a basis for the claim that the $280 is necessary for use as evidence in connection with any criminal charge. The $280 should not be immune from garnishment, since the ends of public justice are not thus served, while a private wrong is inflicted upon this plaintiff. The $280 was always properly subject to garnishment, since it was never properly in the custody of the law for use as evidence. When a record presents, as this does, the holding of moneys not needed for evidence to support a criminal charge for upward of three and a half years, we ought, in a scire facias proceeding, to cause judgment to be entered in favor of the plaintiff appellant for the amount of the moneys, $280, so held. There is no occasion for remitting the plaintiff to another court so far as concerns the $280 for a finding that there is no reasonable prospect that the accused can be apprehended, to be followed by an order as to the disposition of the moneys and this to be followed by another attachment of these moneys by this plaintiff.
I am of the opinion that judgment should be rendered in favor of the plaintiff for the $280, and that the rest of the property should be left, for the present, in the custody of the law. *Page 324