Morrill v. Brown

Shaw C. J. delivered the opinion of the Court. The trustee is chargeable on his answer. By collecting the checks he became answerable to Brown for the amount of his share of the money. Had he received bad bills to the amount of the whole or any part, if he had acted in good faith and with reasonable diligence, pro tanto he would not have been a debtor to his principal, and on showing that matter in his answer, to the same extent he would have been discharged. ■Precisely the same rule would have been applied, had he received American gold or dollars and some had proved counterfeit. He would be discharged therefore, not upon the ground of his "having received bank notes instead of money, but on account of the nature of his agency, and the legal responsibility arising from it. But the distinction in' this case is, that the trustee having cash drafts, in which the principal was interested, collected them, in a medium passing by common consent as cash, and by him received without objection, as and for money. There upon he became instantly a debtor of the principal to the amount, and an action for money had and received might have been maintained against him for it by the principal. The statute contemplates two distinct species of property, attachable by this process, goods and credits. The trustee, in the language offthe statute, holds a credit, when he is a debtor to the principal, and the execution implies, that he is to pay over in money. He is to make the payment to the creditor of the principal, which, but for the intervention of the attachment, he was bound to make to the principal himself. But if he holds goods, they are to be delivered to the officer, having the execution, to be sold like any other attachéd property. This distinction is well marked in one of the cases cited in the argument, which was very able and ingenious on [177] both sides. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. R 438. To charge a trustee, in general, the principal must have a cause of action against him, or he must hold goods or chattels capable of being seized on execution. To bring the trustee within the former case, there must be a subsisting cause of action against him; he must be indebted' to the principal. This is the true test of his liability imder this branch of the statute. When an agent to collect money, receives bank notes without objection and as money, he, becomes liable for money. So, if he take a note payable to himself. Floyd v. Day, 3 Mass. R. 403. So, if he sue in his own name, and levy his execution on real estate. Randall v. Rich, 11 Mass. R. 494. Because in legal contemplation he collects, receives, and discharges the cash debt of his principal. The principal cases in which it was determined that a trustee could not be charged in consequence of holding promissory notes, or bank notes, are quite distinguishable from this. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. R. 438; Perry v. Coates, 9 Mass. R. 537. The notes were in both cases held specifically for the principal and the trustee was the depository, not the debtor, of the principal. In this case, there was a debt due from the trustee to the principal, in money, payable immediately and upon no contingency, a present subsisting cause of action; and therefore the Court are of opinion, that the trustee must be charged.