Lyman, Converse and Pomeroy v. James Orr, and Ira D. Bixby & Henry W. Catlin, Trustees, 26 Vt. 119

The opinion of the court was delivered by Bennett, J. The only question in the case, is as to the amount for which the trustee, Bixby, should be held to be chargeable. Bixby bought the place of Orr, at $2900, and after deducting the incumbrances, there was left in the hands of this trustee $344,87, for which sum it is conceded he should be adjudged trustee ; and it is also claimed that he should be charged with interest on that sum; but a majority of the court think otherwise.

The sale to Bixby-was made the 16th day of September, 1850, and the next day Carlos Baxter commenced his trustee suit, demanding in damages one thousand dollars. That suit was pending when this was commenced, and at the time of filing the disclosure. When Baxter commenced his suit, the trustee was not in behalf of the principal debtor, chargeable with interest. There had been no unreasonable detention of the balance due the principal debtor.

He would naturally require some little time to ascertain accurately the amount of the incumbrances, "When Baxter’s writ was served, there is no ground to suppose that by implication a credit had been given to Bixby for the balance to be paid Orr, or an implied promise to pay interest upon it. Neither had there been at that time, any wrongful detention of the money, by means of which interest might commence running.

The effect of Baxter’s suit was to lock up the funds in the hands of the trustee; and this was their condition when the present suit was commenced, and since that time the funds have been in the custody of the law. If this trustee process had been dissolved, there is no ground upon which the principal debtor could claim interest up to that time ; and the attaching creditor must stand in his shoes. If this demand had been on interest at the time the first trustee process was served, the case might have merited a different consideration.

But as it was not, I apprehend there is no sound ground, upon which we can say the interest shall have run since the demand has been locked up. It is said in argument, that a doctrine of this kind opens a door for collusion between the trustee and the plaintiff to get the funds locked up to save the interest. It is sufficient to say, that when such a case arises, it will be time enough then to decide it. Quite a different result in such a case might follow.

Neither is it necessary to say what our decision would have been, if it had appeared that the trustee had received interest on this fund, pending the trustee suit. But this we are not to presume. It may he said, that if the trustee intended to exculpate himself from the payment of interest, he should have deposited the money with the clerk of the court. But why so ? There is no law which makes that a duty. The trustee is himself the stakeholder of the funds, for the one or the other, as their rights may be determined ; and to deposit the money with the clerk would be the veriest gratuity.

The cases cite'd by the counsel from the 4th Mass., and the 4th Metcalf, are full authorities fox this decision; and they are not at variance with the case in the 8th of Pick. The result then must he an affirmance of the judgment against the principal debtor; and as to the trustee, Bixby, the judgment of the court below is reversed with costs, and judgment that he is chargeable for the principal only, that is, for $344,87.