Battaile v. Fisher , 36 Miss. 321 ( 1858 )

HaNDY, J.,

delivered the opinion of the court.

The questions presented in this case, arise upon exceptions taken in the court below, to an account stated by a commissioner against the appellant, as a receiver in chancery, and the action of the court below thereupon.

It appears that a suit had been commenced in chancery by James Dick et al. against Peter Fisher, administrator of George Fisher. During the progress of that suit, Peter Fisher, the defendant, was appointed receiver of the property in controversy, including certain slaves, which he was authorized to hire but, and with power to collect assets, &c., and be was removed subsequently from tbe trust, and tbe appellant was appointed receiver in bis place, upon bis executing bond, conditioned that be would well and truly perform tbe duties of receiver in tbe case, and well and truly collect all assets, &c. A motion was afterwards made, that the appellant should report to the court the funds and property in his hands, which was granted; and, upon bis returning his statement and report, exceptions were taken thereto, and the matter was referred to a commissioner to state and report an account of the amount due from the appellant, as receiver, charging him with all moneys received by him, &c., and with all sums received by him for rent of land or hire of negroes, or which he might have received by reasonable diligence, and for the reasonable hire of the negroes in his hands, while they were in his possession, and in his service and employment, &c. Under this reference the account was stated, to which exceptions were taken by both parties.

The exception taken on the part of the appellant, was to the charge against him in the account, for the hire of the slaves in his possession, and interest on the amount of the hire; and the overruling of this exception is the first error assigned.

It appears, by the evidence taken and reported by the commissioner, that the slaves in the appellant’s hands, for which this charge was made, were employed by him in working on his plantation, and that their labor was valuable to him, and worth as much to him as the sum allowed by the commissioner. The amount for which he is charged appears not to be contested; but it is insisted that, as it was his duty to keep the slaves, and as he was not required by the terms of his appointment to hire them out, he occupies the same position as a sheriff holding property under attachment or other process, and is not responsible for their hire during the time they were in his possession. But it is plain that, from the nature of his office, he had the power to hire out the slaves, though not expressly required to do so. They were placed in his hands for an indefinite time, and, in all probability, would remain there for several years. During that period, it would not have been proper to permit them to be unemployed, and they were capable of being productive of profit to those interested in them by their labor. It was, under such circumstances, his duty to make them profitable; and if he received to his own use the benefit of their labor, without hiring them out, he has thereby received a benefit from the trust property in his hands, for which he is justly accountable.

But, moreover, he was appointed in the place of Fisher, who, by the terms of his appointment, was required to hire out the slaves ; and, by the terms of the appellant’s appointment, he was required, well and truly to perform the duties of receiver in the case, and, well and truly to collect all assets, notes, claims, money, hire of 'property, as heretofore ordered, &c. These last words plainly indicate that his powers were intended to be coextensive with those of the former receiver, and that it was contemplated that he should hire out the slaves. This exception was, therefore, properly disallowed.

The next error assigned is the action of the court in sustaining the exceptions taken to the account by the appellees.

The first of these exceptions was taken to the commissioner’s allowance of the sum of five hundred dollars to the appellant, for his fee in preparing the answer of Peter Fisher, administrator, to the bill originally filed in this cause, and for defending the suit.

This appears to be a claim either against Peter Fisher, or against the heirs and distributees of the estate of George Fisher; and in either case it is a matter between the appellant and those parties. From all that it is shown by the' record, it would appear to be a claim against Peter Fisher, for which he might obtain allowance in the settlement of his administration account. But there appears to be nothing which would render it a just claim against the receiver, either Peter Fisher, or the appellant; and therefore it was clearly not a matter within the scope of the account directed to be taken, which was to ascertain the amount for which the appellant was chargeable as receiver in the cause. The matter of an independent claim which he might have against Peter Fisher, administrator, or the distributees of the estate of George Fisher, was beyond the authority of the commissioner; and, if such a claim could be justly allowed out of the fund in the receiver’s hands, it was certainly not proper to inéroduee it into the account which the commissioner was required to state.

As to the -equitable nature of the claim, on the ground that it was due for beneficial services rendered to the estate, there appears to be nothing showing that it is more than a claim against Peter Fisher, as administrator. If he had paid it, it might be a proper subject for allowance to him, in his account in the Court of Probates ; and it is in that way only, that it could have been properly allowed in that court. Put it was certainly not a matter which the Chancery Court could take cognizance of, and allow in this cause, in the manner in which it was presented.

The next exception was taken to the allowance, by the commissioner, of the sum of $300, paid by the appellant to various persons for Peter Fisher, as receiver, the several sums being paid, according to the vouchers exhibited by the appellant, as attorney for Fisher. It is clear that this exception was properly sustained.

The receipts exhibited as vouchers for this claim show, that the sum claimed to be due thereby was due to Peter Fisher, for the sum purported to have been paid by his attorney for him. Hence, they did not entitle the attorney to allowance for the moneys paid. If the appellant advanced the money for Fisher, the claim was against Fisher; and if it was applied to pay claims which Fisher was bound to pay as receiver, still the appellant, in advancing the money for Fisher, could not thereby have occupied a better position towards the fund in the receiver’s hands, than Fisher. Whatever claim Fisher would have had, he might have been entitled to, but subject to all the disadvantages of Fisher’s position. But, according to this, the appellant was not entitled to an allowance of the claim; for it appears that Fisher was largely in arrears, on account of the fund in his hands as receiver, and could not have been entitled to receive anything on the claim set up.

The exceptions of the appellees were properly sustained.

Decree affirmed.