58 N.H. 577 | N.H. | 1879
The debt due from the trustee to the defendant having been attached, he is entitled to make the same defence he could if sued by his creditor. The rights of the trustee are not changed to his prejudice by the fact that the action is commenced by a creditor of the principal defendant, and not by the defendant himself. Swamscott Machine Co. v. Partridge,
To allow the trustee to make the set-off claimed in this suit, would allow him to pay his private claim by appropriating trust property to that purpose. It is not the policy of the law to allow a trustee to mingle trust funds with, or exchange them for, his own property. It may be said that he would be liable upon his bond to make good the amount so appropriated. But it not unfrequently happens that the bond is insufficient in amount, or becomes impaired by the principal or sureties becoming irresponsible; besides, the rights of the sureties ought not to be imperilled by suffering the principal to appropriate the trust property to himself.
It may be said that the principal defendant is insolvent, and that this is the only opportunity to collect the debt due the trustee's intestate. If that be so, it is the misfortune of the estate. The administrator cannot attach the funds in his own hands, because the plaintiff and trustee would be legally the same party. Hoag v. Hoag,
Trustee chargeable.
BINGHAM, J., did not sit: the others concurred. *579