Hemmenway v. Pratt

The opinion of the court was delivered by Redfield, J. We are unable to see how Parmeter, under the state of facts disclosed in the case, can be regarded as the trustee of Pratt. He certainly has received no money on account of the execution, and is not likely to receive any, unless after ■ a suit against Gleason, to. whom he delivered the property attached, on his verbal [335] promise to pay the executions. Hejnow refuses to pay this execution, on the ground that he is but an agent in the matter for Frost & Brown, who have been adjudged trustees of Pratt for the same money. This shows very clearly, that Parmeter has not received the money, and is not likely to receive it, without a suit, the event of which may not be entirely free from doubt, unless that uncertainty, which has thus far been one of the chief characteristics of the law, has ceased to exist. But if we regard the liability of the officer as fixed, beyond all doubt, — and very likely it is, — and that he can therefore recover of Gleason, his liability is not by way of contract. It is neither goods, effects or credits of the principal debtor, entrusted or deposited in his hands or possession. It is but a right of action in the form of tort, and in fact for a tort, for a specific breach of duty, a positive torong, and no more liable to this process, than any other right of action, in form ex delicto. There is less propriety in allowing the action in this case, than when the alleged trustee has taken the debt- or’s money, by way of usury; and it has been held, that, in such case, there is no liability to this process, — because the act of taking the usury is in the nature of a wrong, and not a trust, or confidence. So, too, if one had taken the goods or chattels of another by force, or fraud, this process will not lie, as has been often held. It must be a debt, or fiduciary obligation, on the part of the trustee, and not a mere tort, or breach of duty. Judgment reversed, and judgment that Amos Parmeter is not trustee.