51 Cal. 442 | Cal. | 1876
It did not appear by the pleadings or the findings that the entire sum of money directed to be paid into court, was at the time, or ever had been, actually in the hands of the trustee; on the contrary, it appears that the sum is made up in part of moneys which, in the opinion of the court, the trustee ought to have received, but had not received as interest. It is clear that the order was not within the class of orders provided for by the Code of Civil Procedure (Sees. 572, 3, 4.) And conceding that the power of the court is not limited by the provisions of the Code, no such authority appears to have been exercised by the Court of Chancery, unless the money was, at the time, actually in the hands of the trustee, or having been in his hands and improperly been paid out by him, as for example, paid out under such circumstances as would involve a breach of trust. (3 Danl. Ch. Pleading and Practice, 1822.) The demurrer to the petition for the -writ of prohibition is, therefore, overruled, and the respondent is allowed the period of ten days from and after the service of a copy of this order in -which to make such answer to the petition as he may be advised.
