after stating the facts in the case, delivered the opinion of the Court—Burnett, J., concurring.

The only question presented by the record is, whether the facts stated in the complaint are sufficient to sustain the judgment rendered.

The argument of appellant’s counsel embraces two propositions : 0

1. That the defendant is improperly sued, in his representative capacity, as administrator of Wright.

2. That the facts stated in the complaint show that plaintiff has an adequate remedy at law, and therefore is not entitled to proceed in equity.

It is not necessary to notice the argument upon the first proposition, as we think it is founded on a misapprehension of plaintiff’s case. It is true that defendant is described in the caption of the complaint as administrator, but the facts stated in the body of the complaint show that he is not sought to be charged as administrator. Ro relief is demanded against the estate, nor does the plaintiff seek to subject the property of the estate to the payment of his demand.

On the contrary, he seeks to recover a specific fund, which he avers is no part of the estate of Wright, but which the defendant withholds under pretence that it constitutes a part of the assets of the estate.

The second proposition, we think, cannot be maintained. It *351 is true that the facts stated in the complaint would entitle the plaintiff to a judgment, at law, in an action for money had and received, but it is also true, that the defendant, having obtained possession of property belonging to another, may be treated as a trustee, and a Court of Equity be invoked to coerce the execution of the trust.

The jurisdiction of Courts of Equity originally embraced all cases involving questions of fraud, accident, or confidence. In many cases of this sort, Courts of Common Law have for a long time exercised jurisdiction, and in many other cases, in which anciently no such remedy was allowed, their jurisdiction is now expanded so as to reach them. 2 Black. Com., 431, 432.

In speaking of the rules by which the jurisdiction of Courts of Equity were determined, Judge Story says :

Lord Eldon upon one occasion said: “ Upon what principle can it be said that the ancient jurisdiction of this Court is destroyed because Courts of Law now, very properly, perhaps, exercise that jurisdiction which they did not exercise forty years ago ? Demands have been frequently recovered in equity which now, without difficulty, could be recovered at law. I cannot hold that the jurisdiction is gone, merely because Courts of Law have exercised an equitable jurisdiction. Story’s Eq., § 64.

In the Hew York Insurance Company v. Rowlet, 24 Wend., 505 , where a cargo of merchandise had been seized and condemned under the Berlin and Milan decrees, afterwards under treaty between the American and French governments, the underwriters received five thousand dollars as indemnity for the spoliation, it was held that the money thus received was held in trust for the assured, and the underwriters were required to pay it over. It was also held, that though an action of law might have been maintained for the recovery of the money, a bill in *352 equity was proper, the jurisdiction of the Courts, in such cases, being concurrent.

The property in funds collected under the revenue law, is vested in the State. The officer is the mere custodian of the fund. He is forbidden to use or employ it in any manner, and he acquires, by possession, no right or interest in it.

The defendant is wrongfully in possession of a specific fund, belonging to the plaintiff. Said fund constitutes no part of the estate of Wright, and defendant’s appointment as administrator of Wright, conferred upon him no authority to take or retain it. He occupies the position, who takes possession without authority of property belonging to another, and may be treated as a trustee de son tort. Hill on Trustees, p. 173.

The question as to the power of the Court below to appoint a receiver in this case, without notice to the defendants, does not properly arise upon the record, as it appears that the order appointing a receiver was, on motion of defendant, vacated in the Court below.

Upon the whole, we are satisfied that the facts stated in the complaint were sufficient to entitle the plaintiffs to the relief sought for, and that no injustice has been done to defendant.

Judgment affirmed, with costs.