Secor v. Clark

22 Jones & S. 500

Opinion

By the Court.—O’Gormar, J.

The judgment sustaining the demurrer in this case was proper.

' Taking the facts as stated in the complaint and admitted by the demurrer, no reason appears why the plaintiff should have any other process for collecting the .judgment referred to in the complaint, than the ordinary means of enforcing a judgment, viz.: execution against the property of the judgment debtor.

. The judgment obtained was not against the defendant .therein in a fiduciary capacity, and the money of the plaintiffs was not held by the defendant in a fiduciary capacity, but wrongfully, and in flagrant violation of law. The money, unlawfully retained by him, had been mixed with his own, and had wholly lost its identity, and plaintiff’s remedy depending on that judgment was against all the defendant’s property by execution, not against any special portion thereof, on the theory of a special lien on it.

The judgment below is affirmed, with costs.

Sedgwick, Ch. J., concurred.