We are very clear that this affidavit was properly dismissed. We do not discuss the constitutional question raised. The case made in this record is not within the Act of October 13th, 1870.
1st. This judgment is a judgment on a bill filed to remove a trustee, appoint another, and to transfer to him the trust fund. The plaintiffs in the bill are not and have not been entitled to the money. The legal title is in the trustee, whoever he may be. Until the money is paid over, the trust fund is in the hands of the trustee, the defendant, and it has been and is his duty to pay the taxes upon it. The *193presumption of law is, that the trustee has, in the judgment, been credited with the taxes. At any rate, it was not and is not now the duty of the plaintiffs to pay the tax.
2d. The very gist of the bill, upon which the judgment was obtained, is the charge that the defendant had mismanaged and was wasting the trust fund, and the finding of the jury was, in effect, a judgment to that effect between the parties, since it was only on that hypothesis that the trustee was removable.
The Act of 1870, expressly excepts from its provisions trustees who have wasted or mismanaged trust funds in their hands. Here is the judgment of a Court of competent jurisdiction in a matter at issue between the parties. It is contrary to every rule and to every authority, to permit this very issue to be again tried. For two reasons, therefore, we think the judgment was right: 1. The affidavit, by denying that plaintiffs have paid the taxes due, asserts nothing that brings this judgment Avithin the Act of 1870, since it Avas the duty of the defendant, and not of the plaintiffs, to pay the tax. 2. The Act of 1870 excepts eases of trustees Avho have mismanaged and Avasted the trust fund, and the judgment is conclusive that these trustees have so done. They are, therefore, by the judgment itself, declared to be within the exception of the statute.
Judgment affirmed, Avith damages.