Wright v. Foord
5 N.H. 178
Superior Court of New Hampshir...
1830
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By the court.

An attentive consideration of the answer of the trustee, in this case, has at length satisfied us that he is clearly entitled to be discharged.

*180This is not a case where the money of the principal is admitted to have come into the hands of the trustee. In such a case, the trustee is to be charged only when he clearly discharges himself. But here the question is, whether the money, which is in the hands of the trustee, is the money of the principal ? The trustee declares that he received the money as the agent of Mrs. Foord’s brothers, and to discharge a mortgage upon their land, and that he did not consider himself accountable for it to the principal, or to his wife. And there is nothing disclosed in the answer, that has the slightest tendency to show that the principal had any claim to the money, except the circumstance, that the draft on which the money was received by the trustee was made by the wife of the principal. This circumstance, if not explained, might afford a reasonable ground to presume, that the poney, when received, belonged to the husband. But such a presumption is completely rebutted in this case by the express declaration of the wife, made when she delivered the draft to the trustee, that the money was not to come to her or to her husband, but to be applied by the trustee to the discharge of the mortgage upon the land of her brothers. She, in effect, declared that she was acting in the business, as the agent df her brothers. On what ground then can the money in the hands of this trustee be adjudged to belong to the principal on this disclosure ? We see none, but are disposed to adopt the language of Mr. Justice Story, in 4 Mason, 459, and ask, how is it possible to say that any goods, effects, or credits, are deposited with, or entrusted to, a party, by the debtor, when the party has no privity with him, asserts his interest to be under a third person, who holds an adverse interest and on his own account, and for other uses has deposited such goods, effects and credits with the Supposed trustee ?”

Trustee discharged.