State ex rel. D. W. Moore & Co. v. Mayugh

Le Grand, C. J., delivered the opinion of this court. This is an action of debt brought by the plaintiff against the administrators of Samuel Etnyre, on his bond, as trustee of Albert Metz, an applicant for the benefit of the insolvent Jaws. Metz .made bis application on the 24th day of July 1854, and [377] on the same day, Etnyre was appointed his trustee, and executed his bond as such. He died on the 24th day of October 1855, and this suit was brought on the 30t.h day of June 1856. The plaintiff declared generally, and the defendants pleaded special and general performance. To the special plea, the plaintiff demurred, and to the plea of general performance, replied by assigning breaches. The defendants demurred to the replication. The court sustained the plaintiff’s demurrer to defendants’ special plea, and the defendants’ demurrer to plaintiff’s replication. The replication of the plaintiff neither avers an audit, notice, nor any order of distribution passed by the court. The first question for our decision is: — whether, since the act of 1854*, ch: 193, a suit can be maintained on the bond of a trustee of an insolvent debtor by a creditor of the insolvent before his claim is adjudicated and ordered to be paid, in whole of in part, by the couft having cognizance of the trust, and control and direction" of the trustee? By the 10th section of the act of 1854, chapter 193, it is provided, “That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity, and no creditor shall acquire a lien by • fieri facias, or attachment, unless the same be levied before' the filing of the petition.” The 12th section declares\ ‘ithat the court shall have the same power and control over the trustees under this act, which courts of equity have over trustees appointed by a decree to sell property.” The power and control of the court being the same in both cases, the inquiry arises:' — could a creditor of the party whose property was sold by a decree óf, a court of equity maintain an action on the trustee’s bond before his claim was audited, and ordered to be paid by the court having control of the trustee? If he could not, neither, then, could a creditor of an insolvent debtor maintain an action against the trustee of the insolvent applicant, until after order of distribution and notice to trustee. In the case of The State, use of Oyster, vs. Annan, 1 Gill & Johnson, 450, it was held, that the bond of a trustee ap [378] pointed by the chancellor to sell the real estate of a deceased' person, for the payment of his debts, is not liable-to be put in suit, after the trustee has sold the deceased’s property, and received the money therefor, upon the order of the chancellor distributing such proceeds among the creditors, without notice to the trustee of such distribution. In Scott survivor of Belt, vs. The State, 2 Md. Rep., 284, it was said, that a suit could’ not be sustained upon a trustee’s bond where the replication, after averring that the auditor had stated an account which had been duly confirmed' by the court, averred, “that the trustee having been frequently called upon by the plaintiff for the amount of the audit aforesaid, was requested by the plaintiff to pay the same, as he was bound to d’o, but the said trustee refused,” &c. &c. And in Williams vs. Williams, 3 Md. Rep., 163, it was again declared, that no one but a creditor could sue the trustee’s bond, and, that until the tribunal having authority to db so, determined In law, no such claim existed. See Boteler & Belt, vs. State, use of Chew, 8 Gill & Johnson, 359. Brooks vs. Brooke, et al. 12 Gill & Johnson, 306, 319. (Decided May 12th, 1859.) Notwithstanding the above, the plaintiff contends, that although the replication be defective the demurrer carries the' count up to the first error in the pleadings, which, it is alleged,consists in the fact that the plea of general performance does not crave oyer, and, therefore, the judgment ought to have been in favor of the plaintiff, and’, in support of this view, the case" of the United States, vs. Arthur, 5 Cranch, 257, is relied upon. In that case the demurrer was special, and not, as in this,. general. The defect in the plea complained of, can only be" availed of by a special demurrer. See Statute of 4 Anne, chapter 14, and Act of Assembly of Maryland of 1763, chapter 23, and Shafer, vs. Stonebraker, 4 Gill & Johns., 353. Judgment'affirmed,-