103 Mass. 396 | Mass. | 1869
In the former suit between these parties, the trustees were discharged, because at the time of the service upon them they had nothing in their hands or possession but a check payable to their order, for the amount of which they were not absolutely liable to the principal defendants. Hancock v. Colyer, 99 Mass. 187. But the amount of that check was afterwards collected by the trustees in money, and deposited, subject to their own order, in the bank, and there remained, liable to be immediately drawn out by them, at the time of the service of this process. They, then, and not the bank, were the debtors of the principal defendants. The money was as much in the possession of the trustees as if they had deposited it on their general bank account, or put it in a trunk in the custody of their own clerk, in either of which cases they admit that they would have been chargeable. The fact that the deposit was made by direction of the defendants, and under an agreement between them and the trustees that the latter should incur no responsibility, might have excused the trustees from liability to the defendants in case the money had been lost by insolvency of the bank. But money held by one person for another is not the less absolutely due, by reason of an agreement between them that the trustee shall not be held responsible for the solvency of parties with whom he may place it on deposit or loan. These trustees are therefore chargeable for the amount thereof, deducting their claim against the principal defendants. Lewis v. Hancock, 11 Mass. 72. Dennie v. Hart, 2 Pick. 204. Hooper v. Hills, 9 Pick. 435. Trustees charged.
