Morrill v. Dunn , 39 Me. 281 ( 1855 )

The facts all appear in the opinion of the Court which was drawn up by

Shepley, C. J.

— It appears, that Joseph D. Davis and John A. Briggs were partners in trade. That partnership was dissolved by agreement on October 16, 1851, and all the interest of Davis in the property of the partnership was assigned to Briggs,- who on October 22, 1851, made an assignment of Ms own property and of the property of the late firm, to the plaintiffs for the benefit of creditors under the provisions of the statutes respecting such assignments.

A part of the partnership property appears to have been subsequently attached and sold by the defendant, as a deputy of the sheriff, on certain writs against the former partners. By an agreement bearing date on August 28, 1852, he admitted that the sum of $631,48, remained in his hands, and ho engaged to account to the plaintiffs as assignees for it at such times as certain suits named should be adjusted and settled.

The plaintiffs having performed their trust as assignees were on their own request discharged by the Judge of Probate, at a Court holden on the third Tuesday of July, 1853. “ It is also admitted, that the plaintiffs have no interest in tbe suit or in. tbe paper named, direct or indirect.” Tbe suit was commenced on March 7, 1854, after they bad been discharged as assignees.

J. Goodenow, for defendant. Morrill & Fessenden, pro sese.

They claim to maintain it for tbe benefit of another, who may have title to tbe money. Tbe officer does not appear to have any title to it; but be must be careful, that be accounts to tbe true owner.

Assignees under the Act of 1844, c. 112, and tbe additional Act of 1849, c. 113, are required to'give bond to tbe Judge of Probate to return an inventory of tbe property assigned to them and to account to him for its disposition. When they have thus accounted and have been discharged of tbe trust, any of the property remaining will revert to the assignor or true owner; and their title as assignees and trustees will be extinguished.

Ás tbe plaintiffs have no private interest in tbe money in tbe bands of tbe defendant, and as their official character and trust has been determined, without any proof that this suit upon defendant’s contract is prosecuted at the request of the party legally entitled to tbe money, tbe action cannot be maintained. Plaintiffs nonsuit.