Rogers v. Jackman

78 Mass. 144

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Metcalf, J.

We need not decide whether these petitioners are proper parties to ask us to remove the respondents from their trust as assignees of the estate of Townsend & Currier insolvent debtors; because we are of opinion that we ought not to remove them for the causes now shown, whoever might have been petitioners.

It is not shown that the creditors of Townsend & Currier have suffered, or are in danger of suffering, any loss by reason of any of the acts of the respondents, as assignees. Although some of those acts were not conformed to the requisitions of our insolvent law, yet they are not shown to have been done with any fraudulent or wrong intent.

In the absence of any wrong intent of the assignees, or of any loss or danger of loss by the creditors, we do not sustain this petition. 2 Story on Eq. § 1289. It is said in Lewin on Trusts, 599, that “ the court will not dismiss a trustee for the mere caprice of the cestui que trust, without any reasonable cause shown, nor even if the trustee have transgressed the strict line of his duty; provided there was no wilful default, but merely a misunderstanding.”

The main cause of the petitioners’ complaint exists no longer, as the respondents, under the order of the commissioner of insolvency, have deposited in a bank the money which they ought to have so deposited at an earlier day. That being done, we decline to remove the respondents for a' fault which they corrected before it caused any harm. See Attorney General v. Gains College, 2 Keen, 167, 168; Matter of Mechanics’ Bank, 2 Barb. 449 Petition dismissed.