Rundlet v. Jordan , 3 Me. 47 ( 1824 )

Mellen C. J.

after stating the facts in the case, delivered the opinion of the Court as follows.

The question as to the liability of the Messrs. Ilooles must be answered by examination of the facts stated in their disclosure, and those only ; — and those facts must be tai on to be true. If any fraud exists between the principal and the two other trustees who have not yet disclosed, that fact, should it appear, can only affect those who may be implicated in it ; but not the Hooles. Delay, therefore, is not necessary with respect to a decision on the disclosure before us.

It is urged that the judgment against Israel Jordan is a credit, and attachable under this process ; but it is no more a credit than the note was before judgment, — -and it could not be, till collected according to the agreement of the parties. The note was only evidence of a debt; and the judgment, while unsatisfied, is nothing more. The case of the New England Insurance Company v. Chandler & trustee differs widely from this. There, certain personal, attachable property was pledged to the trustee, to secure a debt ; and he W'as surely a trustee for the surplus, after his debt was paid. Here was no property deposited, pledged, or received ; but only the evidence of a debt due to the principal ; — ■ and a mere trifle only has been collected ; — not a tenth part of the sum due them.

There is nothing on the face of the disclosure indicative of fraud, or concealment of the property of the principal, to defraud his creditors ; and we cannot presume it. On these facts, the principal could not maintain any action for the amount of the judgment, founded on the agreement which the Hooles made with him, for the surplus of the judgment has not been demanded by the principal ; Maine Fire & Marine Ins. Co. v. Weeks 7 Mass. 438, — and of course his creditor cannot, - on such facts, charge them as his trustees. But it is said that the Hooles have not used due diligence to collect the amount of the judgment, and by reason of this* misconduct have made themselves liable to the principal. There seems no proof of this negligence ; and even if they were liable to the principal in a special action on the case for such negligence or fraud, this mere liability is not a credit within the meaning of the statute ; — no debt can exist till damages are ascertained by judgment in such action. A man may be liable to an'action for slander, assault and battery, or any other tort, in which heavy damages would be given ; but such a liability would not render him a trustee ; — only goods deposited, or a debt due and not contingent, can be the subjects of this statutory process. We perceive no grounds therefore on which these trustees can be held liable, and accordingly they are discharged. See 2 Mass. 96. 4 Mass. 85. 11 Mass. 90. 4 Mass. 272. 5 Mass. 49. 9 Mass. 537. 6 Mass. 339.