Commonwealth v. Gould

Gray, C. J. The condition of the bond given by John W. Cartwright as one of the receivers of the Hide & Leather Insurance Company was in accordance with the decree appointing him, and was that he should faithfully conduct himself in his office as receiver, faithfully perform its duties as required by law and in obedience to the directions of the court, and truly and faithfully account for and pay over the moneys of the company which should come into his hands. The sum of $13,565.97 was ascertained to be due from and ordered to be paid by the receiver by an order of a justice of this court, after due proceedings and a full hearing. 1 Smith’s Ch. Pract. 646. Cartwright’s case, 114 Mass. No motion — 307 — having been made by the receiver or his sureties to set aside or vary that order, it is competent evidence against his sureties as well as himself, both of a breach of his bond, and of an amount due from him upon such breach, for which they are responsible. Paine v. Stone, 10 Pick. 75. Heard v. Lodge, 20 Pick. 53, 58. Beall v. New Mexico, 16 Wall. 535. Dawson v. Raynes, 2 Russ. 466. Ludgater v. Channell, 15 Sim. 479. The receiver was obliged by his bond to account for the moneys1 borrowed by him from the corporation before his appointment. and his omission to pay the amount thereof to himself as receiver was a breach of the bond, for which he and his sureties are equally liable. The case falls within the general rule of law, that when the same person is liable to pay money in one capacity, and to recover it and account for it in another, the law presumes that he has done what it was his duty and within his power to do, and holds him and his sureties responsible in case of his failure to do it. The rule has been applied by this court to cases of executors and administrators, assignees in in.jolvency and guardians. Ipswich Manufacturing Co. v. Story, 3 Met. 310, 313. Leland v. Felton, 1 Allen, 531. Choate v. Arrington, 116 Mass. 552. Benchley v. Chapin, 10 Cush. 173. Mattoon v. Cowing, 13 Gray, 387. It does not depend upon the title which the principal obligor takes in the property, but upon his duty to collect and account for it. A receiver indeed holds the property, not in his own right, but as the officer and representative of the court. Davis v. Gray, 16 Wall. 203. Hills v. Parker, 111 Mass. 508. But that affords no reason for holding him or his sureties to a less degree of responsibility. The question, what compensation, if any, is due to this receiver, can only be determined in the cause in which the receivers were appointed. The fact that such compensation had not been determined could not be availed of in this action, otherwise than by a motion to postpone until further proceedings could be had in that cause. At the hearing of the present action, it could not affect the amount for which the defendant should be held liable. If anything should be hereafter ordered to be paid to the receiver, by way of compensation or otherwise, his sureties may present a petition to this court sitting in equity to have the amount applied to — 308 — their indemnity. Glossup v. Harrison, 3 V. & B. 134; S. C Coop. 61. Brandon v. Brandon, 3 De G. & J. 524. Judgment for the Commonwealth for the whole sum.