Abbott v. Fisher

Soule, J. At common law, one of two or more co-trustees is not liable for the acts of his co-trustee in misusing or failing to account for moneys received under the trust. It is only when moneys have come to his own possession, or he has aided in or connived at the misuse of them by his associate, that he is held responsible. Ames v. Armstrong, 106 Mass. 15. In the absence of express provision to the contrary, this principle applies to the case of co-assignees of bankrupts, under the bankrupt law of the United States. It follows that the plaintiff was under no personal liability by reason of the failure of the defendant Fisher to perform his duty, so long as there was no participation in, nor assent to, the neglect on his part. But he had the power, and it was his duty, in behalf of the creditors of the bankrupt, to institute proceedings which should look toward protecting their interests against the misconduct of Fisher, and might result in his removal from office; and if, after initiating proceedings for 418 this purpose, he refrained from pressing them to a result, in con sideration of certain notes signed by Fisher and indorsed by the other defendant, a jury would be warranted in finding that he thereby so far assented to the acts of Fisher as assignee, and participated in his neglect of duty, as to make himself personally responsible for the moneys collected and received by him and not properly disposed of. This would be a sufficient consideration for the notes sued on. It does not distinctly appear how far the proceedings had gone, on the plaintiff’s petition against the defendant Fisher for reomring him to furnish sureties, so that we cannot assume that ♦he decision of the court below was based on a finding that there was any false representation to the defendant Allwright. As the ruling was in favor of both defendants, and no distinction between their cases was pointed out, it would seem that the ruling went upon the ground of want of consideration only. For the reasons above indicated, we are of opinion that the plaintiff should have been permitted to go to the jury on the question of consideration, and that the learned judge who presided at the trial erred in ruling, as matter of law, that the action could not be maintained. New trial ordered.