#### Samuel Parsons, impleaded with John Jewett, *ads.*Benjamin De Forest and Alfred De Forest.

In order to maintain an action of assumpsit against two trustees jointly, for money had and received to the usé of the *cestuy que trust,*the plaintiff must prove a *joint promise,*either express or implied. As each trustee is, in general, answerable for Ids own acts only, the law will not *imply*a joint promise on the part of *both*to pay over tho money in their hands to the *cestuy que trust,*from the mere fact that *each*trustee has, for himself, separately admitted that there were funds in *his*possession equal to the amount of the plaintiff's claim.

The plaintiffs in this case, being creditors of C. & D. (who had assigned their property to the defendants by a deed of trust for the benefit of certain persons, among whom were the plaintiffs) filed a bill in equity against the defendants. The defendants answered separately, and each in his answer admitted that ho bad received funds to a considerable amount out of the estate assigned, and that *he then*held in his hands a sum equal to the plaintiffs’ demand, which he proffered his readiness to distribute according to'the terms of the trust.

Upon an action of assumpsit against both trustees for money had and received to the use of the plaintiffs, founded upon these admissions, it was held, that the proof did not support the declaration, and that the plaintiffs could not recover unless they proved a joint promise on the part of both defendants.

This was an action of *assumpsit*for money had and received,— the declaration containing but a single count, which embraced the usual money demands and an account stated. The defendants appeared by different attorneys and separately pleaded the general issue.

The defendant Jewett, suffered a default to be taken against him, but Parsons appeared and defended.

The cause was tried before Mr. Justice Oakley, and at the trial, the plaintiffs, to support the issue on their part, produced and read, in evidence a bill of complaint filed in the, Court of Equity for the first Circuit of the State of New-York, in a case wherein George W. Wallis, and the present plaintiffs, and Charles and George Belden were complainants, and the present defendants *131were respondents,—together with the "separate answer of each defendant to said bill.

The bill stated, that one David Cromelien and David Davies, being indebted to the complainants in various sums of money, on the 23d day of March, 1827, became insolvent, and being possessed of considerable personal property, agreed upon a compromise with their creditors upon certain conditions. That in pursuance of this agreement, the said Cromelien & Davies made an assignment to the defendants, Parsons & Jewett, of certain goods, credits and choses in action, amounting in value to a large sum of money, upon the condition, that they should apply the proceeds of the same to the payment of the debts of the creditors named in a schedule annexed to the assignment according to the proportions therein specified; and among said creditors were the plaintiffs in this suit, who were entitled to receive, under said assignment, the sum of $934 21. The bill then stated that the defendants converted said goods, &c. into money, and that Jewett being applied to by the complainants according to the terms of the trust to make payment, expressed his willingness to do so, but alleged that Parsons had possessed himself of the proceeds of a large amount of stock, which had been conveyed to said trustees by Cromelein & Davies, together with the sum of $2500, arising from the sale of said goods. The bill also asserted that Parsons being applied to for a like purpose, refused, under various pretences, to make any payment whatever. The bill then prayed for relief, and that Parsons might be removed from his situation as trustee, alleging, that he had threatened to apply said funds to his own use.

Parsons in his answer admitted, that he had received from the sales of stock and goods transferred to said trustees, the sum of $8,392 12, but alleged that he had paid out on account of the trust, $4,617 34, and that the difference between these two sums ($3,774 78) remained in his hands.. He denied any unwillingness on his part to dispose of the funds in his hands according to the trust, but alleged that he could not safely part with them, because he had been regularly served with a process of foreign attachment in the State of Connecticut, by the creditors of C. & G. *132Belden, whereby said funds were attached and held to answer that suit. He admitted that the present plaintiffs were entitled unqer saj<j deed of assignment to receive the sum stated in the foilL and alleged that Jewett had in his hands funds unincumbered sufficient to meet the demands of all the complainants.

Jewett in his answer admitted the principal allegations in the bill, and also that he had received from the proceeds of the property assigned, the sum of $27,801 83 ; but he alleged that of this sum he had paid out $24,909 71 on account of the trust. The difference between these sums he admitted was in his hands, subject to the claims of the complainants and his own charges for commissions, and that the present plaintiffs were entitled to receive from said trustees the amount stated in the bill. Jewett also proffered his readiness to answer all claims upon the trust fund, but alleged that Parsons had received and retained in his hands the proceeds of certain stocks, which were intended to satisfy the claims of the complainants, but that he refused to pay them over without any just excuse.

By the terms of the assignment (which was attached to the answer of Jewett) it appeared that C. & G. Belden were not to be paid the amount of their claims, until after all the other creditors named therein were satisfied, and from the answers it appeared that all the said creditors except the complainants, had received the amount they were entitled to claim.

Parsons in his answer stated that the complainant Wallis was *not*entitled to receive any thing from the trustees under the assignment, as he was not mentioned therein, and because Jewett received a specific sum from Cromelein & Davies to answer that demand. Jewett admitted that Wallis *was*entitled to receive $1800 (the amount of his claim) *under the*assignment, and stated that the only reason why Wallis was not formally named, was because his account was not liquidated. He admitted also that he had received from C. & D. the sum of $2000 with which ' to satisfy Wallis’ claim, but alleged that he received it under the trust, to be distributed according to the terms of the assignment.

It thus appeared that *each*of these defendants had in his hands a sum sufficient to cover the demand of the plaintiffs.

*133Upon this testimony the counsel for the plaintiffs having rested their cause, the defendants moved for a non suit; but the motion was overruled by the presiding Judge, who was of opinion that the plaintiffs were entitled to a verdict. To this opinion the counsel for the defendants excepted. The jury returned a verdict in favor of the plaintiffs for $1019 75, and the defendant, Parsons, now moved for a new trial.

*Mr. W. S. Johnson*in support of the motion, contended,

I. That the matter in controversy formed the subject of equity jurisdiction only. The trustees under the assignment received different and very unequal parts of the proceeds of the trust-fund, which each had distributed for himself without concert with his co-trustee. Each then is answerable for his own acts, but. nothing more, and they cannot in a court of law be called to an account jointly.

An action at law does not lie against a trustee except upon an *express promise*by him, and no case can be found where he has been held liable upon a promise implied from the mere fact of his reception of funds. [*Coke Lit.*272 *b. s.*404. 1 *Coke Rep.*121 c. 2 *Bulst.*336. 12 J. *R.*276 *Weston v. Barker.*5 *Term R.*690.] A court of law cannot look into the accounts to examine the claims of the various parties, nor can it adjust the amount, which each is entitled to receive. Nothing but a court of equity can do complete justice between the parties, and therefore a court of law will not entertain jurisdiction upon the subject matter.

II. The attachments served on Parsons in Connecticut, are a bar to the plaintiff’s right of recovery against him. Parsons in all his admissions, couples them with a statement of his liability to respond to the attaching creditors. He was perfectly willing to pay over the funds in his hands according to the trust, if he could do so with safety. He is justified in his refusal to part with them while those suits are hanging over him, and he cannot be compelled to part with any portion of those sums until the termination of that controversy. If the attaching creditors prevail in Connecti*134cut, can Parsons pay over the funds, which he holds as *the trustee °*3 *Belden,*to any but those creditors! Can he escape the consequences if he act thus imprudently, and will any Court compel him to assume a risk where he has no beneficial interest**? If he be right then, in retaining the fund he must retain it entire, and a court of law will not sever it. [5 *J. R.*100 *Embree and Collins v. Hanna.*]

III. The defendants are not *jointly*liable, as appears by the evidence. Each trustee is liable for himself but not for his co-trustee. If any action at law can be sustained against a trustee, it must be upon an express promise, and if the action be against *two,*then there must be a *joint*promise. Here each defendant answers for himself. Each admits that *he*has funds, and throws upon the other the obligation of paying this debt. These defendants are not jointly liable even in equity, and much less will a Court of law raise a joint promise from separate admissions. Suppose Parsons to have in his hands but $500,while Jewett has $1500: Can Parsons be made liable for any part of the sum in Jewett’s hands ! If the latter become insolvent, can the former be responsible for *his*delinquency ! And if the whole sum be collected of Parsons by execution, must he pay the debt of another without funds, and take the risk of looking to a man over whom he has no control for remuneration! The law imposes no such hardship upon trustees, and this action cannot be maintained. *I. Hopk. R.*309-5 *J. C. R.*296. 6 *Ib.*16. 4 *Vin. Ab.*534. 3 *Equi. Cas. Ab.*742. *Attor. Gen. v. Randall.*1. *P. Will.*81. 2. *Mad.*14 12. 11 *Ves.*324. 2. *T. R.*366.]

*Mr. Hugh Maxwell*for the plaintiffs observed.

I. That the Court had already decided when this case was formerly before them, *(Vol.*1, *p.*137.) that the action should be *a joint*one against both defendants, and that the attachments in Connecticut formed no defence to the suit. The second point of the plaintiffs is at all events disposed of, and the first is not tenable even as an abstract proposition. It has been repeatedly and expressly *135decided that a trustee may be sued in a court of law for a balanc*e*admitted by him to be in his hands for the *cestuy que trust.*It cannot be necessary to drive a plaintiff into Chancery where the defendant admits that he has a certain, fixed and specific sum in his hands to which the plaintiff is entitled. Where the accounts are unsettled and before any balance is struck, or before it is ascertained what amount the plaintiff is entitled to receive, it may be, that an action for money had and received will not lie against the trustee. But when he has converted the funds into money and has admitted the plaintiff’s claim, and that he holds the money for him there can be no good.reason for driving him to his bill in Equity, nor for ousting a court of law of its jurisdiction. At all events it is well settled that if there be a balance in the hands of a trustee, which he has *promised*to pay, that amount may be recovered in an action of assumpsit. [1. *Paine’s Cir. Ct. R.*636. 644. *U. S. v. Clarke*12, *J. R.*280. *Weston v.*Barker.]

II. As to the attachment in Connecticut, there is no privity between the attaching creditors there, and these plaintiffs. The rights, which we have under a valid assignment, cannot be defeated by any such process, and this excuse will not avail. Besides, nothing was attached in Connecticut but the interest of the Beldens, who were to *have nothing*until all other creditors were paid. What peril, then, could be brought upon Parsons, even if he were to pay to us the sum, which he holds for our benefit *1*Would it not be a sufficient answer to any suit against him, that the funds in his hands were held in trust to pay certain creditors, and that by the terms of the trust, the Beldens were to have nothing until all other creditors were satisfied *1*Would it not form a good defence, if he were to say that the fund was exhausted before any rights of the Belden’s attached *% Their*rights depended upon a contingency, and if the contemplated event did not take place, then those rights *could not attach.*It cannot be that Parsons had any fear from that source, and his only object is delay. At all events the excuse for not paying these plaintiffs is no defence at law, and it cannot avail any thing. *[Embree and Collins v. Hanna.*5 *J. R.*100.]

*136III. The only real question is, whether, there has been *a,promise,*and if so, *such*a promise as will sustain this action.

Let us for a moment advert to the facts. It is asserted in the Bill in equity which has been admitted as evidence here, that Cromelein & Davies made an assignment to the defendants *jointly*of certain goods, credits and choses in action, which were to be converted into money and distributed among certain creditors of the assignors in given proportions, according to an indenture, to which Cromelein & Davies the. defendants, and the creditors were parties. *Each*of the defendants, admits in his answer, that the goods, credits and choses inaction so assigned were received by them *jointly;*that they were converted into money by the defendants, and that the proceeds have passed into their hands. *Each*defendant *admits,*that there are *now*funds enough in *his*hands, to satisfy the claims of the complainants, and each *alleges*further that his *co-trustee*has funds enough in *his*possession to pay this demand ; and *both*defendants admit, that the plaintiff’s claim is just, and that it ought to be satisfied. Each defendant proffers his readiness to do justice in the matter, but insists upon it that his *co-trustee*ought to pay this particular demand.

From these confessions we draw proof of facts enough to support this action. The plaintiffs have nothing todo with the collisions between the trustees, and are indifferent as to the issue of *their*contests. Neither have *uie*any thing to do with hypothetical cases put by the ingenuity of counsel, and this Court is not called upon *to give*judgment against co-trustees, where *one*is *without*funds, and the other is full-handed. We take the case as it actually exists, and ask the Court, if the law does not impose an obligation upon the defendants *jointly*in a case where *each*is in possession of an abundant fund expressly appropriated to the payment of this debt? Is it any answer for Parsons to say, that true *it is,*the claim is just,—it ought to be satisfied, and *I*have the means of payment; but in an arrangement between myself and Jewett, it was agreed or understood that *he*should pay this debt, and he has the means of doing it: look, therefore, to him. Will an excuse like this lie in. the mouth of Jewett as a defence, and *137if the matters admitted in the answer were spread out as a defence at law* would they form a plea in bar of this action *%*

If an execution go forth against these defendants, no *injustice can*be done, let the sheriff proceed as he will, for each defendant has in hands the money of the *real*debtors, intended to be applied to this very object, which he refuses to give up.

But we are told, that there is no *express*promise to pay. What if there is not *1*there is an express admission of a debt due from Cromele'in & Davies to the plaintiffs, and an express admission of funds in the hands of the defendants to meet this debt. Here is a direct acknowledgment of money had and received to the use of the plaintiffs,and for them; and will not the law upon these confessions raise an *assumpsit 1*Is not the admission tantamount to an express promise, and can the defendants by a technical defence of this kind drive us from the straight course of the law into the circuitous paths of a court of equity ! And for what *1*The defendants could have nothing there, which we refuse them here, and there can be no reason founded upon justice or good sense, which will defeat this action.

We rely upon the general principle of justice, upon which this peculiar action rests: *Ex equo et bono,*the defendants ought to pay us this money, and a court of law can compel them to do justice. But if authority be wanting, it is to be found in the case of *Weston v. Barker*t o the full extent of our claims.

*Mr. S. P. Staples*in reply, observed that the difficulty in the way of a recovery *in this action,*was to be found in the fact, that there was *no joint*liability on the part of the defendants. The trustees are not liable for each other, and hence no joint action against them can be sustained "except upon an *express*promise, and that promise must be a *joint*one.

The defendants are trustees created by a deed, containing an assignment for the benefit of creditors. The *cestuy que use,*has neither *jus in re,*nor *jus ad rem,*and hence can have no action at common law. His rights are *equitable*merely, not legal, and a court of equity is the only tribunal which has jurisdiction over the subject matter of the complaint. *[Co. Lit. 272 b.]*

*138The case of *Weston v. Barker*so far from supporting *this*action is an authority to prove, that it will not lie, unless there has been an *express*promise. Judge Thompson did not intend to go beyond this point, and it will be observed that his opinion, even as reported, was not sustained by all his brethren. Spencer J. in an able and almost incontrovertible opinion, maintained the other side of the question, while Judge Platt gave no opinion upon the point at all.

The principle upon which we rely, is to be found in all analogous cases. Take a case of partnership, where accounts between partners are settled and a balance struck: there still cannot be a recovery by one partner against another at law, unless there has been an express promise. *[Murray v. Bogart & Kneeland,*14 *J. R.*322.]

The case of *Beach v. Hotchkiss*[2 *Connec. R.*697] contains the same principle in another matter. That was a case of joint adventure, where a balance had been struck, but there was no express promise, and it was held that the action could not be supported. So in an action for a legacy, no action at law will lie against the executor, unless upon an express promise. [5. T. *R.*690.]

The general principle is laid down by the Supreme Court of the U. S. in the 2d of *Wheaton’s Rep.*56, and is supported by all the authorities. “ A trustee, merely as such, is in general only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable.” [8. *Taunt.*263. *Holt’s N. P. R.*641.] *in this*case the defendants *are*trustees merely, and the funds cannot be drawn out of their hands by an action at law.

The defendants *at all events*are not liable until the *trust*is *closed,*whichis not the case here. The rights of Wallis are not ascertained, the defendants commissions are not fixed, and the amount to be distributed is not known. This of itself is a conclusive objection to the action. [*Chit on Con.*88. *Com on Con.*281, 301, 282, 302.]

II. But in equity even the liability is not joint, but separate. Each trustee is liable for the property in his hands, and for noth*139ing more. If all the mdney pass into the hands of one trustee, his co-trustee is not liable in any Court, unless he has improperly permitted the fund to be diverted from himself. [6 *John C. R.*16. 452. *Mumford v. Murray,*and the cases already cited,]

III. If the defendants are liable at all, it is upon the sole ground of an express promise, and that leads us to look into the evidence.

But in the first place it may be well to ask, what is an *express*promise *1*It is an undertaking or an agreement, to do or not to do a particular thing upon a sufficient consideration. What is an *implied*promise ? It is the inference of law arising from a given state of facts. An express promise and an implied promise cannot exist at the same time concerning the same thing, for the implied promise will be merged in the express one.

In this case, even if the evidence should present facts from which an inference might arise, that Parsons ought to be made liable jointly with Jewett, it would still fall far short of what is required to sustain this action.

The declaration upon the face of it, for the purposes of this case, must be considered as stating an express promise.' A mere assent cannot be construed into an express undertaking, even if there was one. But here there is no assent on the part of Parsons proved. The *bill*in equity is no evidence against the defendants for any purpose ; neither can the *answer*of one defendant be used as evidence against the other. The only proof in the cause against Parsons is to be found in his own answer.

From that answer it appears, that the accounts are not closed, and that Parsons is ignorant of their real situation, as Jewett has kept them all. True it is that Parsons has money enough in his hands to pay this debt, and so has. Jewett. But the fund in Parson’s hands is attached by the creditors of C. & G. Belden. If Parsons were to pay *this debt,then*those creditors would have no remedy,and the Beldens would draw out of Jewett’s hands all the money remaining there. Now the proceedings in Chancery are still pending, and justice in that Court can be done *to all*the parties interested in the fund. But by sustaining this suit, you leap over that Court *140and undertake a task not suited to the constitution and powers of a court of law.

It may be true, that the *trust*is joint, but it does not follow that its *obligations*are joint also. The trust would be joint if the funds had in point of fact all passed into Jewett’s hands; but in such case, it will not be pretended, that Parsons would be liable in a court of law.

The result of the inquiry is, first, that no evidence of *assent*on the part of Parsons to the demands of the plaintiffs can be found ; and second, there is nothing to show an *express*promise. There is a mere admission of funds in hand, which Parsons swears he is ready to distribute according to the terms of the trust. This admission raises no promise, which can sustain this action, and the Judge ought to have nonsuited the plaintiffs. The promise proved (if any such there be) and the proinise implied are but *several*ones, at all events, and such proof will not sustain the declaration.

Hoffman J.

After stating the facts observed, that the utmost extent to which the evidence in the cause went, was to show that *each*of the trustees had funds enough in his hands, arising from the proceeds of the property assigned, to pay the demand of the plaintiffs ; and the question was, whether such proof could sustain this action.

The plaintiffs, in order to make the defendants liable, must prove an *express promise*on their part to pay this demand ; and in order to support their declaration, they must also show that the promise was a *joint*one. There can be no doubt that *either*of these defendants, or *both*of them, might be made liable by an express promise to pay over to a *cesimj que trust,*an amount of money, which they held for him as trustees. But here no express promise is *proved,*and I doubt whether any can be *implied,*from the facts, which will sustain the action.

No case has been cited where an action has been maintained in a court of law against trustees, upon the mere ground, that funds had passed into their hands. If that position were correct, an action at law might always be maintained against trustees’ *141to their great prejudice, and the utter confusion of their accounts. In the case of *Weston v. Barker,*Judge Thompson maintains his argument upon the sole ground, that there were facts enough in that case to show an *express*promise. He did not go beyond this point, and did not mean to give the latitude claimed here by the plaintiffs. In the case cited from Paine’s Reports, his opinion was placed upon a ground entirely different from that assumed here, and that opinion cannot, therefore, aid the plaintiffs in this matter.

As a general proposition, it is undoubtedly true, that a trustee is not liable to be sued by the *cestuy que trust*in a court of law, from any obligations resting on him as *trustee merely.*He may, if he choose, vary his responsibilities by his own acts, and by an express agreement. If he admit that he has funds in his hands for the *cestuy que trust,*and promise to pay them over to him, the law will find no difficulty in supporting the promise by a sufficient consideration. But if no promise be proved, it cannot be *implied*as an inference of law from a given state of facts. A case may exist where the Court or jury might *infer*that an express promise was made, although not proved in direct, explicit, and unequivocal terms. The *necessity*of proving an express promise is one thing, and the *mode*by which it shall be done is another.

From the facts shown in this case, I take it to be clear, that the remedy of the plaintiff is in chancery; and creditors in such cases must look to that tribunal. It is certainly true, that here is no joint promise proved, and yet such a promise is absolutely necessary to maintain a joint action.

The most that could be claimed under the facts, would be a several action against each trustee, upon his own admissions; for then his answer would be evidence against himself. The general rule is, that each trustee is liable for his own acts and not for those of his co-trustee, although some exceptions to this may be found. But here the answer of Jewett is no evidence against Parsons; and the latter cannot be convicted except by his own admissions. But he has not confessed a joint liability and a new trial must be granted. I think, however, that the remedy of the *142plaintiffs is properly in equity, and if they choose to be nonsuited, they may take that course instead of proceeding to a new trial.

*Oakley J.*after stating the facts. I am satisfied, on reflection, that I ought to have nonsuited the plaintiffs at the trial. The action being against the defendants jointly, a joint promise must be proved, either expressly or impliedly. There is no proof of any express promise, either jointly or severally; and the law cannot, as against these defendants, imply a direct promise, from the fact that each is in possession of funds, sufficient to discharge the debt, and that it is the duty of each to pay it. The rule appears to be well settled, that trustees are not jointly liable to the *cestuy que trust,*unless they have made themselves so "by some joint act. Each is responsible for his own acts, and for the money that he receives. *Kirby v. Turner and others, 1 Hop. Ch. R.*309. *Morrell v. Morrell, 5 J. C. C.*296.]

In the absence, then, of any evidence of an express promise on *the*part of the defendants, it seems that the law cannot raise a joint assumpsit; as their responsibility to account for and pay over the trust funds is, in its nature, separate and distinct.

I do not mean to give any opinion on the point, whether, under the peculiar circumstances of this case, an action at law will lie against either of the defendants separately. The plaintiffs have, no doubt, a perfect and easy remedy by application to the Court of Chancery, to compel an execution of the trust.

*New trial granted.*

[W. P. Hawes, *Att'y for the plffs.*W. S. Johnson, *Att’y for Parsons.*J. W. Girard, *Att’y for Jewett.]*