In re Sharp

I concur in the order staying proceedings, but I am not prepared to say that an order settling the account of an assignee in insolvency, and directing the payment of a dividend to the creditors, is such a judgment as will bear interest from its entry.

*580 The assignee is an officer of the court, and his relation to the creditors is only that of a trustee, and the general rule is, that a trustee is not liable for interest upon moneys of which he is only the custodian, until he repudiates the trust, or does some act inconsistent therewith. The assignee’s relation as trustee is not terminated by the entry of the judgment, and his trust would not be repudiated until after a demand of payment by the creditors and a refusal on his part. If, when such demand is made, there is a sufficient reason for his refusal, he cannot ,be said to have repudiated his trust. The statute gives to an appeal from the order the effect of staying proceedings, and to prevent him from making payment of the dividend. The question, however, is not involved in the present motion, and as any dictum in reference thereto will not be authority upon the court when the question may be presented for decision, I am…

Charles R. Allen, the petitioner herein, is the assignee in insolvency of one Sharp, an insolvent *578 debtor, and has given a bond for the faithful discharge of his duties as such assignee. On November 10, 1891, the court in which said insolvency proceeding was pending made an order settling the final account of said Allen, as such assignee, in which order a certain credit of $250, claimed in the account filed by him, was disallowed by the court, and as a part of the same order, directed him to pay over to the creditors of the insolvent the amount of money adjudged to be in his hands by such order, to wit, the sum of $3,662.86. Thereafter, the assignee perfected an appeal to this court from the order settling his account, and filed an undertaking for the payment of all damages and costs which might be awarded against him on the appeal not exceeding three hundred dollars.

The assignee having failed to distribute the money belonging to the estate of the insolvent, as required by the order before referred to, was cited to appear before the judge of the superior court, and show cause why he should not be punished as for a contempt of court.

This is an application for an order of…