
    R. J. Davant, Com'nr vs. F. P. Pope, Ex'or of Geo. Pope.
    
    Debt on -a trustee’s bond, conditioned to perform all the duties of the trust and account annually before the Commissioner. The declaration assigned breaches — that the trustee had not applied the proceeds of certain lands sold, as in duty bound, and had not accounted annually before the Commissioner. Plea — that the trustee had not been •summoned to account, nor had the accounts been adjusted and a sum ascertained to be due thereon. Replication — that leave was given by the Chancellor to put the bond in suit: — Held, on general demurrer to the replication, (1) that, if the plea had been good, the replication did -not answer it, and was, therefore, bad; and (2) that the matter alleged in the plea did not bar the action, and, therefore, the plea was bad.
    Where it is necessary that the accounts should be adjusted and a sum ascertained to be due, before recovery can be had in a suit on a trustee’s bond, leave given by a Chancellor to put the bond in suit, will net answer in place of a decree upon the accounts: semble.
    
    Whether, before an action can be sustained upon the bond of a guardian, or other trustee, there should be a decree upon his accounts, is not a question either of jurisdiction or pleading, but one of evidence only: semble.
      
    
    Wherever, in an action on the bond of an administrator, guardian, committee of lunatic, or other trustee, whose duty requires him to render his accounts before a tribunal adequate to adjust them, the object is to recover a sum due upon the accounts, the plaintiff must be prepared to show at the trial, as the best evidence, that the accounts have been adjusted before that tribunal, and the amount claimed ascertained to be due.
    
      Before Withers, J., at Charleston, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action in debt upon bond in the penalty of $3,Q00, payable to the plaintiff as Commissioner in Equity, for Beaufort district. George Pope, the testator of defendant, executed the bond, as did also C. L. McNish, J. H. McNish, and P. J. Walsh. The condition of the bond, (which was duly proved,) after reciting that C. L. and John H. McNish had been substituted and appointed, by the Court of Equity for Beaufort, trustees in the room and stead of Jeremiah Fielding and R. J. Davant, under a deed that had been executed by Thos. E. Scriven, for the benefit of Mrs. Ann McNish, consort of John McNish, and her children, was as follows : ‘ If the said C. L. McNish and John H. McNish shall and do well and faithfully execute and perform all and whatsoever duties do, shall, or may pertain to their said trust, and shall, in each and every year, account before the said Commissioner in Equity, or his successors in office, for all and singular their actings and doings touching the same, then,’ &c. Dated, 2d March, 1841.
    
      “ My memorandum of the declaration is to the effect that it sets forth the bond and its condition, and charges that under the condition the trustees, principals in the bond, were to receive the proceeds of two certain plantations, and apply the same in a manner set forth; that the said plantations were sold by order of the Court of Equity ; and the breaches were, that the trustees had not applied the proceeds of the plantations so sold as in duty bound.
    
      “ The pleas on the part of the defendant were :
    “ 1. The general issue. 2. That no party liable on the bond had ever been summoned to account in the Court of Equity, nor had any account of the actings and doings of the trustees, or either of them, ever been taken and adjusted by the Court of Equity, or any other Court having jurisdiction of the matter.
    
      “ The plaintiff joined in the general issue, and to the 2d plea replied that in February, 1851, the Chancellor presiding at Charleston, in a certain cause then and there depending between Ann McNish, wife of John McNish, by her next friend, and her son and daughters, (whose names are stated,) plaintiffs, and Bernard E. Guerrard, Jeremiah Fickling, R. J. Davant, (this plaintiff,) John McNish, John H. McNish, and the personal representatives of C. L. McNish, when they should come within the jurisdiction, defendants : It was ordered that the plaintiffs in that cause have leave to sue the bond of C. L. McNish and others, (the bond now in suit,) upon terms of indemnifying the Commissioner, Davant, against all costs in pursuance of Chancellor Johnston’s decree, filed 28th February, 1850.
    
    
      “To this replication defendant filed a general demurrer. Joinder by plaintiff.
    “ The cause was tried in the absence of Mr. Treville, the defendant’s attorney, though it had been postponed from a former day to that on which it was tried under some arrangement between counsel. Mr. Petigru, for plaintiff, was reluctant to do what he said he was obliged to do — that is, to try the cause in the absence, of Mr. Treville, and by the consent of the Court, some time and pains were employed to ascertain whether the defendant was represented by any one, or whether Mr. Treville could be found. The cause finally went on upon the issues and under the circumstances stated.
    
      “ The execution of the bond was proved by a subscribing witness. The fact on which the plaintiff’s replication was based, also appeared from the records of the Court of Equity.
    “ It further appeared for the plaintiff, in evidence, that C. L. McNish was dead, and it was believed that no administration had been taken on his estate; that B. E. Guerrard had paid, 29th December, 1843, to George Pope, (the defendant’s testator) $2025, purchase-money of two tracts of land situate in St. Luke’s Parish, called ‘Stock Farm’ and ‘Bower.’' This George Pope had acknowledged in writing, at the said date, and recited that the said tracts had been sold to Guerrard by Lycurgus C. McNish, and more particularly described by titles for the same, of same date, from said McNish to Guerrard. In consideration of said payment, George Pope undertook to procure for Guerrard the consent of all the adult cestui que trusts interested in said tracts of land) and procure also a relinquishment of dower in the same from the wife of said Lycurgus C. McNish, and ‘on failure thereof to return to the said Guerrard the said sum of $2025.’ George Pope further agreed to surrender a mortgage he held on the same tracts of land to Guerrard, for the same consideration. Mr. Edmund Rhett said, by information from the parties interested, George Pope had put the said fund out at interest; that, as he understood, the money was paid to George Pope for his protection as surety on the bond now in suit, and for the protection of Guerrard, Elliot, and others, who had purchased the land, and had contributed to the payment for it; and that, as the Court of Equity had pronounced the title of McNish to Guerrard good, he (the Witness) saw no reason why the defendant should not pay over the money, unless Mrs. McNish was entitled to dower. Mr. George P. Elliott stated in his deposition that Mrs. McNish had never renounced her dower in either of the tracts of land.
    “The only additional evidence adduced for the plaintiff was the following:
    
      IN CHANCERY — BEAUFORT DISTRICT.
    JANUARY SITTINGS, 1841.
    ‘Ex parte.
    C. L. McNish, )
    
    H. McNish, >
    J. H. McNish. )
    
    
      ‘ To the JHonorable the Chancellors of the said State:
    
    
      ‘ The Commissioner to whom it was referred to inquire into the facts stated in the petition, reports, that on the 5th February, 1831, Doctor T. E. Scriven conveyed to J. Fickling and R. J. Davant, the land first described in the petition, upon the trust they would permit Mrs. Ann McNish to receive and take the rents and profits thereof during her life ; then in trust for all and singular such child or children as she at the time of her death shall leave surviving her; that at January sittings of this Court in 1838, upon the petition of Mrs. Ann McNish, such proceedings were had as to substitute C. L. McNish and John H. McNish, two of the present petitioners, trustees in the stead of the original trustees, upon certificate of such appointment and substitution being endorsed by the Commissioner upon the original deed and duly recorded; that the said deed had been sent in due time to Charleston for registration in the office of Secretary of State, where it has been lost or mislaid, so that, up to the present time, notwithstanding frequent and diligent searches, it has not been recovered, and in consequence the said- endorsement has not, and could not be made; that there has been no evidence of the execution of the deed mentioned in the petition as having been made to John McNish; that from the testimony of George Pope, who is well acquainted with the land, it is comparatively valueless in its present condition ; that both tracts are worth together not more than fifteen hundred dollars, and a sale of it would be advantageous to the cesttii que trusts. All which is respectfully submitted.
    R. J. DAYANT, Com.’
    
      TN CHANCERY — BEAUFORT DISTRICT.
    MAY SITTINGS, 1841.
    ‘ Ex parte.
    C. L. McNish, 1 H. McNish, }
    
    J. H. McNish, )
    
    
      ‘ To the Honorable the Chancellors of the said State :
    
    ‘The Commissioner reports, that under the order in this case, he offered the land described in the proceedings for sale before the Court House at Gillisonville, on the first Monday in March last, for one-third cash, the balance in one, two, and three years, to be secured by bond bearing interest from the date, payable annually, with personal security and a mortgage of the property; that the same was purchased by C. L. McNish for.$1500 00
    Deduct Commissioner’s costs, $10
    “ Commons on sale, 15
    “ Costs on petition,
    “ Ex parte Ann McNish, 10
    “ “ John McNish, 10
    “ “ C. L. McNish, et al. 10
    - 55 00
    $1445 00
    ‘That for this amount he has taken the receipt of the said C. L. McNish as trustee, he and his co-trustee having given security for the faithful discharge of their trust, and delivered to the said C. L. McNish the title for the land. All which is respectfully submitted,
    R. J. DAVANT, Com.’
    “ Such was the case presented. No evidence, of course, was offered for defendant, nor any argument, as his attorney was neither present nor represented. I made every inquiry that suggested itself on behalf of the defence, and I concluded that the demurrer should be overruled, and then that the plaintiff had made proof sufficient to entitle him to recover from the executor of George Pope the money ($2025) paid over to him to answer the demand of those interested in the two tracts of land sold by his principals as trustees, and the interest thereon. Inasmuch as the aggregate exceeded the penalty of the bond, the verdict was confined to that amount, to wit, $3000.
    “ On the first or second day after the trial, the defendant’s counsel, Mr. Treville, placed in my hands the annexed grounds of appeal, with a brief of the case in Equity between Ann McNish and her children, and Guerrard, Fickling, and Davant, parties pro forma, and process is prayed for against John McNish, John H. McNish, and the representatives of C. L. McNish, whenever they may come within the jurisdiction. I presume the case is still pending in the Court of Equity. The decree of Chancellor Johnston on circuit, from which there was an appeal, presents ably and elaborately a complicated case as to the different conditions in which the ‘Bower’ and the 'Stock Farm’ tracts stand, and determines that seven out of eight of the children of Ann McNish are tenants in common with Guerrard in the ‘Bower,’ so far as the case would rest merely on the deed of Thomas E. Scriven. But it was thought John H. McNish should be made a party, and some further inquiries made before it could be adjudged, whether the sale of the ‘Bower’ tract by the principals of defendant’s testator was valid or not. As to.the ‘Stock Farm,’ it was determined, on circuit, that Ann McNish had consented to, or procured the sale of that, and being alive, her children had, as yet, under the deed of Scriven, no interest that could be enforced.
      
       What case the defendant could have made out of the materials which are contained in the said brief, I do not know, nor can I tell whether the Court of Appeals will hear such matter on appeal. I allude to it because, if any injustice has really been done by determining the cause, I should be glad to find any proper mode of redressing the mischief, though the Circuit Court was no how blameable for it.
    
      “ Supposing, however, that points of law raised by the pleadings have been properly resolved, and that all parties, vendors, purchaser, trustees and cestui que trusts, are before the Court of Equity, I am the more reconciled to the idea that abstract justice can be done by that tribunal to and among all concerned, when a fund comes into the hands of its Commissioner by an action permitted by that Court, derived from one who was a depositary, with no interest that can suffer after the fund has been substituted for the land, and when the very act of dealing with it accordingly must, it would seem to me, release him or his estate from all further liability by reason of his suretyship.
    “ Of course such considerations have nothing to do with the rights of the defendant touching the validity of his demurrer, or his claim of non-suit. The first point the pleadings raised before me, and though the motion for non-suit was not made there, I should still hope the defendant may have all benefit of it when made in his grounds of appeal.”
    The defendant appealed and now moved this Court for a non-suit or new trial on the grounds :
    First. — Because an action will not lie either against the principal or surety to a trustee’s bond, until the principal has accounted to the Court of Equity for the manner in which he has executed his trusts and discharged his duties, or until, having been summoned, or required to account, he has failed, neglected, or refused to account; and as it appears by the pleadings in this case, that neither of the trustees to whose bond the defendant’s testator was only a surety, had ever accounted, or even been summoned, or required to account, either to the Court of Equity or to any other Court having jurisdiction, it is respectfully submitted that the defendant’s demurrer ought to have been sustained.
    Second. — Because, there having been no previous account taken, and no evidence of a failure to account when required or summoned, there could be no such evidence of the breach of the condition of the said bond, and the consequent damages, as the Court of Common Pleas had jurisdiction to examine and consider, and it is therefore submitted that whether the demurrer was properly overruled or not, the plaintiff ought to have been non-suited.
    Third. — Because, by the condition of the said bond, the undertaking of the said George Pope was, that the said Charles L. McNish and John H. McNish should faithfully perform “all and whatever” duties shall or may pertain to the trusts, created by the deed executed by “ Thomas E. Scriven for the benefit of Mrs. Ann McNish and her children ; ” the value of the property, therefore, included in that deed alone formed the utmost limit of his responsibility, and the verdict should have only been for the price for which the land called the “Stock Farm” was purchased by the said Charles L. McNish, or afterwards sold to B. E. Guerrard.
    Fourth. — Because, from the verdict the defendant is at least' entitled to have deducted the value of two-eights of the “Bower Tract,” to which the said John H. McNish and Charles L. McNish, the trustees, are entitled, and one-seventh of the value of the “ Stock Farm,” to which the said John McNish is entitled.
    Fifth. — Because, whether the sum of $2025, or any other sum, was paid to the said George Pope by the said B. E. Guerrard, at the request of the said Charles L. McNish, as his, the said George Pope’s indemnity, or not, was perfectly immaterial to the issues in this case, inasmuch as the action was on the bond and not for money had and received; besides which, it was proved that the said money was paid to the said George Pope, in part consideration that he, the said George Pope, would procure good titles to the said two tracts of land for the said B. E. Guerrard, and a renunciation of dower by the wife of the said Charles L. McNish, which has never yet been done.
    
      JR. De Treville, for the motion.
    Until a trustee (and under this general term, guardians, administrators, committees of lunatics, <fcc,, are included) has been required to account, has accounted, and a decree has been rendered against him, or has disobeyed the summons and has failed to account, no- action will lie on his bond. Cited and commented on Bice vs. Thomson, 2 Bail. 339; Anderson vs. Maddox, 3 McC. 237; Harrington vs. Cole, 3 McC. 509; Jones vs. Anderson, A McC. 113; Pratt vs, McJunkin, 4 Rich. 5 ; Buckner vs. Archer, 1 McM. 85 ; Lesterjette vs. Ford, lb. 86, note, Then, does the order of Chancellor Wardlaw authorising suit on the bond, give the Court authority to sustain the action? Clearly, it does not; James vs. Wallace, 4 McC. 121. The authorities show, that, before 1840, the action would not lie tinless a decree on the accounts had been pronounced. The Act of 1840 (11 Stat. 112) provides, that if any guardian, trustee, &c., shall fail to make his return, a rule shall issue against him, upon the return whereof, “ if no sufficient cause be shown, his office and authority shall be revoked, and suit directed to be instituted on his bond, for not making return, and rendering an account according to law.” This Act seems to make a difference. Before, no suit could be brought until a decree on the accounts had been made. By the Act, if, on the return of the rule, the trustee fails to show sufficient cause, his office may be revoked and the bond put in suit. In such case the penalty of the bond would seem to be the measure of damages. The party has the bond, and that stands in the place of the trust estate. Now, it does not appear in the replication, in this case, that there was a rule on the trustees, that they failed to show sufficient cause, that, therefore, their office was revoked, and the bond ordered to be sued. All these should have appeared.
    
      Peligru, contra.
    The cases referred to by the counsel in which it has been held, that the action at law will not lie on the bond, until an account has been taken in the proper Court, are cases upon administration and guardianship bonds, and proceed upon the terms of the condition. The rule was adopted as one of practice, for convenience sake. It is not a question of jurisdiction, but one of practice merely. The Court refuses to hear the case, because it is inconvenient to do so until the accounts have been adjusted in another forum and a balance there ascertained to be due. There is nothing in this case — in the terms of the bond — -which make it necessary that the plaintiff should show that the trustees have been summoned to account,andthattheyhaveaccountedorfailedtoaccount. The condition of the bond is, that they shall perform all the duties of their trust. The plaintiff shows that they have not performed their duty — that they have received money and have not applied it as they should. He is, therefore, entitled to a verdict for some amount. Cited 1 Saund. 58; Winslow vs. Ancrum, 1 McC. Ch. 100. There is no statute whidh requires a bond to be taken from a trustee. The bond now in suit is, therefore, a common law bond. It is a bond for the performance of covenants, and the question is, if one of the covenants of such a bond requires the party to account, can he be sued for a breach of another covenant ? The argument on the other side is that he cannot — to that extent it goes. Cited 3 Dan. Ch. Pr. 210, and contended, that the Chancellor might order the money into Court; and the order for leave to sue, was nothing but such an order.
    
      
       Where the action is upon an administration bond in behalf of a distributee, inasmuch as the covenant upon which alone the breach can be assigned, makes it the duty of the administrator to make distribution, only after the same has been allowed by the Court, (Act 1789, § 21, 5 Stat. 110,) it seems clear, that a decree must be rendered before commencement of the action, and that, when the plaintiff is called upon by the course of pleading to assign a breach, he must allege, that for the amount claimed a decree has been rendered; Archb. of Canterbury vs. Tappen, 8 B. & C.151; Ordinary vs. Williams, 1 N. & McC. 587; Ordinary vs. Mortimer, 4 Rich. 271; 1 Wms. on Ex’ors, 364.
      Where the action is upon the bond of any other trustee, the condition of which contains no such provision, then the rule stated in the abstract would seem to be the true one. Even, however, in the caso of an administration bond, whero the breach is assigned upon any one of the several oovonants which do not require a decree of the Court before the act is done, (5 B. & C. 151) for failure to do which the complaint is made — as where the action is in behalf of a creditor, (Ordinary vs. Hunt, 1 McM. 380; Ordinary vs. Giles, 2 Tread. 720; Ordinary vs. Spann, 1 Rich. 429, and Ordinary vs. Johnsey, and Ordinary vs. Richardson, Col. May, 1853,) the plaintiff is not required to allege that a decree has been made : — perhaps not even to prove one at the trial. Eor instance: a creditor is required to prove (1) his debt against the estate of the intestate, (2) that assets have come to the hands of tho administrator sufficient to pay it, and (3) a devastavit. (1 McM. 382; Ordinary vs. Johnsey.) He produces a judgment recovered against the administrator for a debt of his intestate, and shows, by the rocord, that no plea of plene administravit had been filed, or that such plea, if filed, had been falsified by the verdict. He thus proves a debt against the estate of tho intestate, and that assets, sufficient to pay it, had come to the hands of the administrator: and if he further produces a ft. fa. issued on the judgment, with a return of nulla bona thereon, he proves that the administrator has wasted the assets. Such evidence, (conclusive against the administrator himself as to his having sufficient assets, vend, prima facie as to his having wasted them; Caldwell vs. Micheau, 1 Sp. 276,) would seem clearly sufficient to make tho surety prima fade liable; Ordinary vs. Carlile, 1 McM. 100; Anderson vs. Jones, 4 McC. 113; Ordinary vs. Giles, 2 Tread. 720; Heard vs. Lodge, 20 Pick. 53.
      Whatever may be the rule in tho English Courts as to the particular covenant or the administration bond on which a creditor suing may assign a breach, (see Wms. on Ex’ors, 363; 1 Salk. 316; 1 Cromp, & M. 711,) in this State, it seems to be considered, and properly so, that the breach may be assigned on the covenant (well and truly to administer according to law;' Ordinary vs. Phillpot, 1 Bay, 462; Ordinary vs. Giles, 2 Tread. 723; Ordinary vs. Johnsey; The People vs. Dunlap, 13 Johns. 437. R.
    
    
      
      
         The following are copies of the declaration, special plea and replication: DECLARATION
      The State of Sotjth-Carolina. ) m *fc. Charleston District. $ W1 *
      Dr. E. P. Pope, executor of the last will and testament of George Pope, deceased, was summoned to answer to B. J. Davant, Commissioner in Equity for Beaufort district, of a plea that he render to him the sum of three thousand dollars which to him he owes, and from him unjustly detains; and therefore the said plaintiff, by Petigru and King, his attorneys, complains: Eor that whereas the said George Pope in his lifetime, to wit, on the second day of March, in the year of our Lord one thousand eight hundred and forty-one, at Charleston, in the district and State aforesaid, by his certain writing obligatory, commonly called a bond, sealed with the seal of the said George Pope, acknowledged himself to be held and firmly bound unto the said plaintiff in the aforesaid sum of three thousand dollars, to be paid to the said plaintiff when he should bo thereunto afterwards required. Which said writing obligatory was made with a condition thereunto written, that “ Whereas the above-bound 0. L. McNish. and John H. McNish have been, by order and decree of the Honorable the Court of Equity, lately sitting at Gillisonville for the district of Beaufort aforesaid, substituted and appointed trustees in the room and stead of Jeremiah. Pickling and B. J. Davant, under a deed heretofore made and executed by Thomas E. Scriven for the benefit of Mrs. Ann McNish, consort of John McNish, and her children. Now, the condition of the above obligation is such, that if the said C. L. McNish and John H. McNish shall and do well and faithfully execute and perform all and whatsoever duties do, shall, or may pertain to their said trust, and shall in each and every year account before the said Commissioner in Equity, or his successors in office, for all and singular their actings and doings touching the same, then the above obligation to be void and of none effect, or else to remain in full force and virtue.55
      And the said plaintiff in fact saith, that the duties which pertained to the trust under which the said C. L. McNish and John H. McNish acted, were to receive the proceeds of two tracts of land ordered to be sold by the Court of Chancery for Beaufort district, and to apply the proceeds of one plantation to the use of Ann McNish during her life, and after her decease to the use of her children, and to hold the proceeds of the other plantation to the use of Honoria McNish, John H. McNish, Charles L. McNish, Thomas J. McNish, Laura McNish, Mary Catharine McNish, Jane Dupre McNish, and Susannah McNish. That the said plantations were sold under the order of the said Court, and the proceeds came to the hands of the said John H. McNish and Charles L. McNish, but the said John H. McNish and Charles L. McNish have not applied the said proceeds to the objects of the said trust, although often required, and have not accounted before the said Commissioner in each and every year for their actings and doings touching the same, but have hitherto, and still do neglect and refuse to comply with the terms and conditions of the said writing obligatory. By reason of which said breaches, the said writing obligatory became forfeited, and thereby an action hath accrued to the said plaintiff to demand and have from the said defendant the said sum of three thousand dollars above demanded. Yet the said George Pope in his lifetime did not pay, nor hath the said defendant, executor as aforesaid, since the death of the said George Pope, as yet paid the said sum of three thousand dollars above demanded, or any part thereof, to the said plaintiff, although often requested so to do; but the said George Pope in his lifetime so to do wholly refused, and the said defendant, executor as aforesaid, ever since the death of the said George Pope, hitherto hath wholly refused, and still doth refuse, to pay the same or any part thereof to the said plaintiff, to wit, at Charleston aforesaid, to the damage of said plaintiff three thousand dollars, and therefore he brings his suit, and so forth.
      And the said plaintiff produces here in Court the writing obligatory, which testifies the debt aforesaid in form aforesaid, the date whereof is the day and year above-written, &c.
      PLEA.
      And for further plea in this behalf, the said defendant, by leave of the Court here for this purpose, first had and obtained according to the form of the statute in such cases made and provided, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the said C. L. McNish and John H. McNish as trustees, and the said T. H. Walsh and George Pope in his lifetime as sureties of the said 0. L. McNish and John H. McNish in the said writing obligatory named, or this defendant as executor of the said George Pope since his death, or any one or more of them the said 0. L. McNish and John H. McNish, T. H. Walsh and George Pope, and this defendant, have never at any time since the making of the said writing obligatory, been summoned or otherwise required by the Court of Equity, or by any other Court having jurisdiction, to account before it for the actings and doings of the said C. L. McNish and John H. McNish, or either of them as trustees aforesaid. Nor have the accounts, actings and doings, and other transactions of the said C. L. McNish, or either of them as trustees as aforesaid, ever been at any time by the said Court of Equity, or any other Court having jurisdiction thereof, examined and adjusted, and any sum or sums of money ascertained on account thereof to be due by the said C. L. McNish and John H. McNish, or either of them as trustees as aforesaid. And this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him, &o.
      REPLICATION.
      And as to the second plea by the defendant above pleaded, the plaintiff says that he, by anything by the defendant in said plea alleged, ought not to be barred, because he says that heretofore, to wit, on the eleventh day of February, in the year of our Lord 1851, in the Court of Chancery, before the Honorable E.H. Wardlaw, at Charleston, in a certain cause depending in the said Court, whorein Ann McNish, wife of John McNish, by her next friend, and her son and daughters, Honoria McNish, Laura McNish, Jane Dupre McNish, Mary Catharine McNish, Thomas Julius McNish, and Susannah Dupont McNish, were plaintiffs, Bernard E. Guerrard, Jeremiah Eickling, the plaintiff, R. J. Davant, John McNish, John H. McNish, and the personal representatives of C. L. McNish, when they shall come within the jurisdiction of the said Court, were defendants; It was ordered that the plaintiffs in the said cause have leave to sue the bond of C. L. McNish, J. H. McNish, George Pope, andT.H. Walsh,given to R. J. Davant, Commissioner in Equity for Beaufort district, dated the 2d day of March, which was in the year 1841, upon terms of indemnifying said Commissioner against all costs, in pursuance of Chancellor Johnston’s decree, filed the 28th November, 1850, as by the said order remaining of record in the said Court at Charleston aforesaid appears and is manifest; and this the plaintiff is ready to verify. Wherefore he prays judgment that his debt and damages aforesaid may be awarded to him.
    
    
      
       See McNish vs, Guerrard, 4 Strob. Eq. 66.
    
   The opinion of the Court was delivered by

Whitmer, J.

This case is presented under peculiar circumstances, though the courtesy of counsel has freed its consideration from much of the embarrassment that might otherwise he felt. This Court, therefore, has been permitted to look into the whole case, so far as its history could be collected from any reliable source, whether furnished by the trial on circuit, or the brief referred to in the Judge’s report. These transactions have already proved prolific sources of litigation, and it is certainly matter of regret that we have not reached the end.

We are all agreed that the verdict rendered cannot stand, but the precise judgment now to he pronounced, as well as the grounds on which it should rest, involve many difficulties and lead to difference of opinion.

First as to the pleadings. The replication of plaintiff to defendant’s special plea, in the judgment of a majority may well be regarded as a departure, and hence defective. If defendant’s plea contained matter, which, if true, precluded plaintiif’s action, the fact that a Chancellor granted leave to sue the bond was no reply. It was not equivalent to a summons to account, much less to an account stated. Nor did it dispense with the account. It was a mere permission to pursue a common law remedy, if the party elected thus to proceed, taking upon himself the burthen still of showing that, according to the rules prevailing in the Law Court, he was entitled to the remedy sought. The defendant having demurred to this replication, we are invited to a review of the previous pleadings, and required to pronounce judgment of condemnation on the first error. Hence a question of greater difficulty, whether the special plea was not defective. The case in hand seems very analogous to previous cases, wherein it has been held that, to maintain actions at law on bonds enumerated, the accounts must have been examined and adjusted, and a specific sum decreed. I know a distinction is insisted on as to administrators’ bonds, &c. But the cases pressing with great force on this point are to be found in 3 McC. 237, Anderson vs. Maddox, and 4 McC. 121, Wallace ads. James. In the former case, which was on a guardian’s bond, the defendant pleaded specially, as here, and the plaintiff tested the sufficiency of that plea by a general demurrer, and, although sustained on circuit, the decision was reversed by the Court of Appeals. In the latter case, on the bond of a committee to a lunatic, a demurrer to plaintiff’s declaration was sustained, thus affirming the previous case, and the principle there recognized, even although a suit had been ordered by a Chancellor.

The clear mind of Judge Nott has well illustrated the convenience and safety, and in many cases the indispensable necessity of a previous account before any satisfactory result can be attained: he has, at the same time however, furnished a distinction to be observed in this whole class of cases. If,” says the Judge, 3 McC. 238, “the plaintiff set out the condition of the bond in his declaration and assign a specific breach, so that it shall appear to the Court that no inquiry into the state of the defendant’s accounts will he necessary, I can see no objection to maintain the action in a Court of Law.” So, too, when a specific sum is ascertained to he due, an action may he brought on the bond, for the purpose of recovering that amount, without reference to any previous accounting, 4 McC. 122, and case referred to in note. In the case of Rice vs. Thomson, 2 Bail. 339, cited in the argument, although there was a decree of the Ordinary, and therefore, not in point here as to any thing ruled, yet I am furnished with an admonition of the dangerous extremes to which it was attempted to carry the Law Court, in denying all jurisdiction in this class of cases, unless there was an averment of an account and a sum certain found. Cases subsequently decided, and there are many to he found in our books, in which this Court has permitted a review and correction of the account even when taken, militate against the position claimed by this mode of defence, whether set up by special plea or by'demurrer. So, too, of the rule, which permits a verdict for the penalty, illustrating the principle as to jurisdiction, although it is true, practically, the remedy may be refused, when the condition of the bond comes to be submitted to a j“7-

The plaintiff in this case has set forth the bond, and its condition, with an assignment of breaches, and upon a question of pleading raised at this point by the special plea, on the authority of this general current of decisions made in analogous cases, and the principles well established thereby, to which I have already referred, there being neither negative to the averments by the plaintiff, nor matter submitted in bar of his right of action, the plea itself was likewise defective.

Regarding the case in this aspect, a brief recurrence to the facts becomes necessary, by way of illustrating the legal principles I mean to assert. Taking it for the present as a case in which the plaintiff is required to submit the .condition of the bond to the jury, a majority of us are of opinion that difficulties lie in his way in the present condition of things, insuperable, assuredly, in so far at least as he may hope to reach an adequate remedy. His equities are manifest, but he must be subjected to the operation of obvious rules. In addressing myself to this part of the case, I have already said, there-is unanimity amongst us, that the verdict, in its present form, connot be maintained.

The sum of $2025 was paid over to the defendant’s testator, who was surety to the trustees, C. L. McNish and J. H. McNish. This amount with interest was assumed as the true measure of damages, and the verdict was rendered accordingly, except that, inasmuch as the aggregate exceeded the penalty of the bond, the verdict was confined to that amount, viz : $3000. But the whole fund arising from the sales by the Commissioner, and which constituted the highest possible measure of damages, was $1500, less the costs, reducing it to the sum of $1445 with interest from time of sale, March, 1841, which at the time of rendering the verdict was several hundred dollars less than the sum found. This might be reached by an order nisi, except for other objections that cannot be thus cured. I will briefly recur to them. What was the trust devolved on C. L. McNish and J. H. McNish, and in reference to which defendant’s testator was bound to respond by the terms of his contract ? They were substituted as trustees in the room of Messrs. Fielding and Davant. The performance of that specific trust had reference to the “ Stock Farm,” and required the proceeds to be applied to the use of Mrs. Ann McNish, during her life, and after her decease to the use of her children. Thus plaintiff alleges in his declaration, though not exactly in the words, it would seem, of the trust deed. This tract, with another, known as the Bower” tract, which had been conveyed to a different trustee and subject to a different use, had been sold by order of the Court of Equity. Its value, or more properly the proceeds of sale, was material and indispensable. The sales of the Stock Farm and the Bower tract were reported jointly, and hence the plaintiff failed in this part of his proof, though a portion of my brethren deem this immaterial, regarding the liability of the surety as extending to the whole fund. Be this as it may. The money was in the hands of the trustees in lieu of the land, and Mrs. McNish, being still alive, was entitled to the interest accruing from the sale of the Stock Farm. Whence, then, it may be asked, could any higher measure of damages be adopted, until, by the death of Mrs. McNish, the children became entitled, or by an order of the Court of Equity the fund was wholly withdrawn.

Again: C. L. McNish and J. H. McNish were each entitled to an interest in the fund, and this recovery presents the singular anomaly, of subjecting the surety to a heavier recovery, than would be authorized against the principals.

To avoid confusion, and with the hope of securing unanimity in the judgment now rendered, at the risk of being deemed prolix, I will take the liberty of presenting a sort of summary of the point raised, and the ruling now contemplated, as applicable to this class of cases. We are not disposed to disavow the jurisdiction of this Court over bonds conditioned for the performance of covenants, or to embarrass its practice by views so narrow as to render its jurisdiction unprofitable. But whilst we admit, in the case of a bond to secure the faithful performance of his duty by a private clerk, and in many other cases, there may be a necessity for the Court’s entering upon the investigation of complicated accounts : that even in the case of an administrator’s bond, a precise amount ascertained, by previous adjudication of this Court, (1 McM. 380, Ordinary vs. Hunt,) may render any accounting unnecessary; and that by surcharging and falsifying, in the mode heretofore prescribed, a surety may bring, under the review of this Court, a decree rendered upon accounting had against his principal: we cannot repudiate the many cases which have settled, that where a guardian, committee, administrator, or other trustee, has been by the general law, or by the terms of his appointment, required to render his accounts before a tribunal adequate to adjust accounts, an accounting before that tribunal must be had, as the best evidence to show a balance, claimed to be due, from the trustee, upon his accounts. In the case before us it is said a balance is not claimed: that no accounts have been rendered, and that the whole sum received is claimed. But how can it properly appear, without accounting, that the sum claimed, or some of it, has not been properly disbursed by the trustees, although no returns have been made of the accounts to the proper officer; and if this case should be easy, how could a practice be admitted, that would bring upon the Court difficult accounts, which its organization is not suited to adjust, but which might be easily adjusted before the tribunal where an account was expected at the time of the appointment. And how can this Court know, that the whole sum received is to constitute the recovery, when the trust seems yet to be unrevoked : no order requiring payment by the trustee has been made, and the terms of the trust deed make it the duty of the trustee, to permit the profits, and not the corpus, to be enjoyed by the cestui que trust. Such damages as have resulted from the failure to apply, as required by the deed, and from the failure to make returns, as required by the bond, would follow from the breaches which the plaintiff has assigned. The admission of the breaches assigned, which is contained in the falsification of the plea of nonest factum, and the default of all other answer to the declaration, which results from the demurrer going to the plea, puts the case, however, in the same condition as if there had been an order for judgment by default, followed by inquiry of damages. What the damages are, is yet to be ascertained, and when the plaintiff undertakes to show them, the necessity of a decree rendered upon an accounting had in the Court of Equity, will appear from the insufficiency of all other evidence weighed according to the well established practice of this Court.

If there had been no plea but the special plea we have been considering, we would have agreed that the demurrer should go to the plea, that the assessment of damages should be set aside, the plaintiff allowed to enter his judgment for the penalty, to stand under an Act of Assembly A. D. 1792, (7 Stat. 280, sec. 7,) as security for the damages and costs, and a new assessment of damages be made. As, however, the plea of non est factiwn, was filed and issue thereupon has been found against the defendant, but only one verdict.has been rendered, and that must be set aside; and as the defendant was well warranted, by previous decisions, in pleading his special plea; we order, that the verdict be set aside on the following conditions:

That the plaintiff have leave to enter his judgment for the penalty, to stand as a security for the sum to be assessed and the costs: execution to be stayed until an assessment be made: That the plaintiff have leave to file a suggestion of further breaches as he may be advised, after reasonable time for procuring an account, and that the defendant have leave to plead, as he may be advised, to the breaches already suggested and hereafter to be suggested : and that inquiry of damages be had, when, after reasonable time, the plaintiff may be ready to “submit the condition of the bond and the special circumstances to a jury in like manner as on a writ of inquiry.”

Wardlaw, Fuost, Withers, and Glover, JJ. concurred.

O’Neall, J.

I should have been better satisfied if there had been a new trial nisi: but as the case is sustained, and there is provision whereby justice may be reached, I concur in the result.

New trial ordered.  