¶1By the Court.
¶2The order committing the Defendant for contempt is appealable.
¶3The case does not show a contempt of the Court by the. Defendant. It does hot appear that it was in the power of the Defendant to perform the act required of him, save by the legal presumption that the-trust fund remained in his hands, which presumption is fairly overcome by the testimony of the Defendant. The fraud the Defendant may have been guilty of in disposing of the trust fund, if such was the case, cannot be reached and punished by proceedings for contempt, in not obeying the order to pay it over to the receiver. These proceedings can only extend to punishing the Defendant for contumaciously refusing to obey the order. We think the Dé-fendant fairly purges himself of the charge of disobedience, by showing inability to comply.
¶4There is an adequate remedy for improperly disposing of a trust fund by a trustee, or person acting in a fiduciary capacity. The party has mistaken his remedy if he intended to accomplish that end by proceeding in contempt. It may ap*218pear that the fund was lost to the trustee in a manner not involving him in culpability, or even responsibility, pecuniarily, when the question is properly presented.
¶5The order is reversed and the Defendant discharged from custody.