Hall v. Woolley

Jackson, Judge. This was a demurrer to a declaration. A suit was brought in the name of John I. Hall, chancellor, for the use of Watkins, trustee, against the defendants, who were joint makers of a bond given by themselves and one Pleasant B. Jones to indemnify certain cestui que trusts if said Jones mismanaged a trust estate confided to him by a former chancellor. The declaration alleged that Jones was dead and died insolvent, and was brought against the survivors. The court sustained a demurrer to the declaration and dismissed the action;' the plaintiff excepted, and the question is, was the suit maintainable against the survivors. At common law, where one maker died the others could be sued, and that without stating the death of the other maker. 1 Chitty, 143 ; 15 Wendell, 318. If so why could not this suit be maintained when the allegation is that the other maker is not only dead but died insolvent? We see no reason why not. It can make no difference that one was in reality the pi-incipal and the others the sureties; nor that it was a trustee’s bond so far as we can see. It was payable to the chancellor, but if his name was used to go into a common [758] law court we can see no objection, especially when the same officer is the common law judge and the chancellor as with us in Georgia. It is implied in our Code that such suit may be maintained. See Code, §§3444, 3386. There is nothing in 54 Ga., 537, nor in 57 Ga., 68, nor in any other Georgia case that we are aware of, which contravenes this ruling. The reason why such an action could not be maintained before statute against the sureties on administrators’, executors’, and guardians’ bonds was the necessity of showing devastmit and getting judgment against the representative first under the old law, but that rule does not now, and never did, apply to a trustee’s bond like this is. The statute was necessary as to that class of trustees, executors, etc,, etc., but not as to this class. Hence no mention is made of trustees in general. Besides, no man is forced into equity if he can get along at law. Code, §5082. Judgment reversed.