The opinion of the . court was delivered by
Redfield, Ch. J.In regard to the liability of the trustee it was held in Barker v. Estes, 19 Vt. 131, that he could only be held liable for such credits as he held of the principal debtor in a fiduciary relation, and which were intrusted to him by way of contract, express or implied, to restore the same to the principal debtor.
Now there is no possible ground of claiming any such liability here. , The claim, in argument, is put Upon the ground, if we correctly understand the counsel, that it was a virtual fraud in the trustee to accept of these partnership notes upon his individual debt. But if seems to us the evidence of any such fraud is slight indeed. It certainly was not known at the time the trustee took the notes that the partnership was insolvent. And all but about eighteen dollars of the money collected by the trustee has gone to liquidate what were originally and equitably the partnership liabilities, and in regard to that there is not the slightest ground of claim that any fraud was intended or committed. And the idea that the eighteen dollars was applied to individual debts in bad faith is highly improbable.
But if the proof of fraud were more satisfactory we do not think the fraud could be reached by the creditors in this mode. It should be done by some proceeding which would settle the *217whole matter as to all concerned. This could only be done in a, court of equity.
The legal title to the notes passed by the endorsements to the trustee. And this being a species of property passing from hand to hand by delivery cannot be pursued and recalled except in a court of equity, even if a trust could be attached to it, so that upon both grounds we think the trustee is not liable here.
Judgment affirmed.