Staples v. Staples

4 Me. 532 | Me. | 1827

Mellen C. J.

delivered the opinion of the court.

It was decided in Maine Fire and Marine Insurance Company v. Weeks & als. & trustees 7 Mass. 438, that promissory notes, and in Perry v. Coates 9 Mass. 537, that promissory notes and bank bills, in the hands of the supposed trustee, belonging to the principal debtor, did not render the trustee chargeable under the statute relating to the subject. But the present case differs from those, inasmuch as Mr. J.Mams states in his disclosure that he, as the attorney of Staphs the defendant, received of the plaintiff the bank bills in question in full satisfaction of an execution in his hands in favor of the defendant against the plaintiff. Therefore, if the mere possesion of those bills by the trustee, would not render him chargeable as trustee, though belonging to the principal debtor, on the ground that they are not goods and effects, still such receipt of them by the trustee in full .satisfaction of the judgment and execution, rendered him the debtor of the defendant Staphs. The question then is, whether, at the time of the service, he was such a debtor of the principal as to be chargeable in this process. His liability to be so charged is denied on the ground that the money had not been demanded before the service, aud that so the principal had at that time, no right of action against him. We admit the principle to be correct, that until after demand made, the attorney in this case was not liable to the action of the principal ; aud it appears that no such demand had been made ; but it does not follow,that he was not liable to this process at the suit of the plaintiff under the circumstances disclosed. In Coburn v. Ansart & trustee 3 Mass. 319,and Thayer v. Sherman & trustee 12 Mass.441, it was decided that money collected by an attorney may he attached in his hands by a trustee process j and it does not appear in either of those cases that any demand had been made of the money collected. It was also decided in Frothingham v. Haley & al. & trustees 3 Mass. 68. Davis v. Ham & trustees, Ib. 33. Willard v. Sheafe & trustee 4 Mass. 234. Wood v. Partridge 11 Mass. 488, and Clark v. Brown & trustee 14 Maas. 271; that a debt due in presentí, but sohendum in futuro, is attachable by this mode of process ; though by several of these cases it was also ..ettled that contingent debts are not so attachable. The case before us differs from that of a sheriff or other officer, who has sollected money on execution ; who is not liable to the suit of the judgment creditor, or as his trustee upon this kind of process, until after demand made, or until the officer has been guilty of gome official neglect, by which he has deprived himself of his official protection, and the mosey has ceased to be in the custody of the law. Wilde v. Bailey & al. 2 Mass. 289. Pollard v. Ross & al. & trustees 5 Mass. 319. While the officer lawfully, and consistently with his duty, holds the money collected, it is considered as in the custody of the law, and therefore protected from attachment. So it is protected in several otheij cases, as in the hands of an administrator; Brooks v. Cook & trustee 8 Mass. 246, and in the hands of a public officer. Barnes v. Treat & trustee 7 Mass. 271.

In addition to what has been stated, we would observe, that no injury can result to the trustee by sustaining this kind of process against him under such circumstances, and calling the money out of his hands ; because he is not liable to any costs of suit. On the facts disclosed, we are all of opinion that the trustee is chargeable.