Williams v. Dwinelle
Synopsis
Adjudging Trustee Guilty of Contempt.—The provisions of the Code permitting the court to adjudge a party guilty of contempt, who has in his possession, as a trustee, money which he fails to deliver to the cestui que trust, or to the clerk of the court, after an order made requiring such delivery, do not apply to a case where the trust fund is made up in part of money which the trustee ought to have received hut has not received, such as interest which he has failed to receive by having neglected to place trust funds in his hands out at interest.
'Courts of Equity and Trustees.-—It was not the practice of courts of equity to adjudge a party guilty of contempt who failed to obey an order to deliver up money held in trust, unless the money was at the time actually in the hands of the trustee, or, having been in his hands, had been paid out by him under such circumstances as would involve a breach of trust.
By the Court: 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.
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