153 A. 734 | Pa. | 1930
This is an appeal from a decree directing an attachment to issue against appellant for failure to comply with the terms of a final decree. The reason assigned for reversal is that appellant does not come within the exception in the Act of July 12, 1842, P. L. 339, therefore *497
he may not be imprisoned for failure to comply with a money decree. The act would apply unless it appears that appellant is within the exception: Ross v. Dever,
The case was here before (Allen et al. v. Sarshik,
We held in Chew's App.,
Morrison v. Blake,
In the instant case an attachment was issued against a trustee ex maleficio. It may be the trust grew out of a contract between Allen and the "straw man" and between them it may be akin to a proceeding for specific performance, yet as to the matter now considered, Sarshik was a third party constructive trustee; it is not within the spirit of the Act of 1842 to prevent arrest of constructive trustees for breach of duty involving fraud; they are specifically excepted from its operation: Chew's App., supra; Church's App., supra.
Cases cited by appellant relevant to the dissolution of a partnership and the like are not in point as they involve the elements of contract solely: Ross v. Dever, supra, 150. The obligation of a trustee grows out of a duty imposed by law, not merely a duty imposed by contract. The breach of that duty by a trustee is a greater wrong to society than the failure to perform a duty or a promise to pay which grows out of a contract. In this case, through appellant's fraud, valuable leases were assigned, and appellant misappropriated funds received *499 for a specific purpose. The court below did not commit error in directing attachment to issue when appellant failed to comply with that order.
The decrees of the court below in both cases are affirmed at appellant's cost.