Cram v. Shackleton

• Decision Date: 30 July 1886
• Citation: 64 N.H. 44,5 A. 715
• Parties: CRAM v. SHACKLETON and another.
• Court: New Hampshire Supreme Court

5 A. 715

64 N.H. 44

CRAM

v. SHACKLETON and another.¹

Supreme Court of New Hampshire.

July 30, 1886.

Reserved case from Strafford county.

Foreign attachment. Facts found by the court:

The writ was served on the trustee, March 4, 1884. At the February term, 1884, the defendant was ordered to file a bond in $200, as security for costs in a bill in equity pending in his favor against Cram. Instead of filing a bond, he deposited $200 with the trustee, stating to him at the time that $175 of it was furnished by Johnson for that purpose. Cram had judgment in the equity suit for $20.66 costs, which, by order of court, were paid out of the money deposited. Johnson was interested with the defendant in certain patents, and gave the defendant his check for $175 to pay the expense of procuring them. The defendant obtained the money on this check, and, without Johnson's knowledge, deposited it with the trustee, as before stated. At the September term the trustee's deposition was submitted, and Johnson had leave to appear as claimant, upon filing a bond; but did not do so, and notified the plaintiff that he elected not to file a bond.

The court ruled that the trustee could not be charged for the $175, but was chargeable for $4.34.

Wiggin & Fuller, for plaintiff.

Mr. Smith, for defendant.

ALLEN, J. It is conceded that the trustee is chargeable for $4.34, the question here being as to the $175. If the $175 in the trustee's hands was Shackleton's money, the trustee is chargeable for that sum; otherwise not. Both Johnson, who furnished the money, and Shackleton, who deposited it, understood it was Johnson's, (Chesley v. Coombs, 58 N. H. 142,) and the trustee at the time of the deposit had notice that it was Johnson's. It was given by Johnson to Shackleton to use for a particular purpose, for Johnson's benefit, and Shackleton's misappropriation of the money did not any the less make it Johnson's. The trustee, having notice when he received the money that it was Johnson's, was liable in equity to repay it to him,—at least, after satisfying the purposes for which the deposit was made,—and he cannot be charged as Shackleton's trustee. Richards v. Railroad, 44 N. H. 127, 140; Leland v. Sabin, 27 N. H. 74.

The fact that the claimant of the fund did not appear under the terms imposed and leave granted, does not prevent the discharge of the trustee. The issue between the plaintiff and trustee remains as if no motion or order for the claimant to appear had been made,...