Page:North Dakota Reports (vol. 1).pdf/106

 It is contended, however, that there has been a fraudulent breach of the trust by a conversion of the trust property, and that the value thereof may be recovered in an action at law against the trustee. This was done in Smith v. Frost, 70 N. Y. 65. A careful analysis of that case shows, however, that the defendant was at most a naked trustee, and that when demand was made upon him for the trust property there remained nothing to be done except the simple act of delivery. No question of redemption, or of accounting, or of adjustment of any kind, could possibly enter into the case. In Bridge Co. v. Van Etten, 36 Mich. 210, it was held that an action at law was properly brought against corporation officers, after they had ceased to be such, for money of the corporation wrongfully converted to their own use. The court say: “Officers of a corporation undoubtedly act in a fiduciary capacity, and may be called to account in equity as trustees. * * ™* But when they have ceased to be officers, and the only complaint made against them is of an appropriation of the corporate funds to their own use, and no discovery is sought, the reasons for seeking the aid of equity which commonly exist in cases of breach of trust are wholly wanting.” In that case there were allegations that the defendants fraudulently, and with intent to cheat and defraud, procured themselves to be made officers. But the court say this is of no force or value. Lathrop v. Bampton, 31 Cal. 17, was an action in equity brought on behalf of the cestut que trust against the executor of the trustee, whose estate was insolvent; and plaintiff prayed a decree that defendant be required to pay over the full amount of the trust fund before paying any amount to general creditors. But, as neither the trust fund, nor any of the proceeds thereof, could be traced into the hands of the executor, the court held that the remedy of the plaintiff was at law, as a general creditor, and on rehearing placed their decision upon the ground that the bill could not be construed as a bill for an accounting. Mercier v. Hemme, 50 Cal. 607, and Frue v. Loring, 120 Mass. 507, have a bearing in the same direction. In some of the foregoing cases, expressions are found broad enough to fully sustain respondent’s contention; but the cases did not call for such unqualified state-