
    Schell vs. The State, use of Sower.
    Appeal- from Frederick County Court. Debt brought on the 4th of May 1809* -on a bond dated the 20tb of December 1795, executed by Mien Quynn, Jr. together With Isaac Mantz and Charles Schell, (the defendant and now appellant,) as Ins sureties, conditioned, that if tbe said Qtíynn shoíiíd ivfell arid faithfully perform the trust reposed in him by tiie chancellor, by decree dated the 8th of December 1795* appointing hiin trusted for selling the real estate of John Sower, -deceased, or aby further decree oiJ ofdef in tbe premises* then, &c. The defendant pleaded —-1. That the thing- in action* in virtue of tlie writing obligatory in tbe declaration mentioned, and the condition thereof, was above twelve years standing at the time of the impetration of the original writ in this cause. 2. That Quynn did not* withifi twelve' years next before the impetratioú of the original writ, commit any breach of the trust reposed in him by virtue of the decree of the chancellor, mentioned in the condition of the bond, oí-by virtue of any other order or decree iri.the premises mentioned in the said decree; and that the thing in action in tlie said specialty* mentioned, was above twelve years standing before the day of the impetration of the original writ. S. General performance of the trust, &e. by Quynn. 4, General- performance of the condition of the bond, &c.
    To the fir.si and second pleas the plaintiff demurred. To the third plea the plaintiff replied, setting out the decree, which, after appointing the trustee, directing tlie hond t® be given, terms and manner of sale, &c, as is usual in such cases, directs that the trustee shall bring into the court of chancery the money arising from any sale by him made, to be applied under the chancellor’s directions, to the purposes mentioned in the last will and testament of John Soimr. The decree also directs, that as soon as conveniently may he after any sale, the trustee shall return to the court of chancery a full and particular account of his proceedings. Also, that he shall return the bond or bonds by him taken from the purchaser or purchasers. And also, that nothing done urider that decree shall be effectual, unless Philip Sower, son of the deceased, had attained the age of 15 years, (as mentioned in the will of the deceased.) The replication then stales, that the trustee accepted the trust, gave the bond, &c. made the sale the 4th of April If $6, took the bonds of the purchaser, and that lie received the money the 25th of October 1797, It secs out the will of the deceased, with averments showing the share and interest of Jacob Sower, (For whose use the suit is brought.) in the money arising from the sale; and that Philip Sower, mentioned iu the will and decree, had attained the age of 15 years before the decree .was passed. The breaches assigned were — 1. That the trustee neglected and refused to return an account of his proceedings to the court of chancery. % That he did not return the bonds taken for the purchase money as aforesaid. And 3* That he did not return the proportion of the mopey to which Jacob Sower was entitled, to be applied, under the chancellor’s directions, to the payment of the share of Jacob Sower, as directed in the will. To the fourth plea, the replication was in substance the Same with the preceding, To the replications to the third and fourth pleas, the defendant demurred generally. The County Court gava judgment on the demurrers for the plaintiff’. From that judgment the defendant appealed to this Court.
    
      fL.pléa of the act of limitations is a harto an action on a bond given fothfc state, by a t t-u^tee appointed .under a decree of thfr eohrt of ehancerv for tlie sale of the real e^tiite of a deceased person, &e. where the bond was executed more than twelve jfcirsr before the institution of the action. As where A Q was appointed a trustee, under a decree of the court of ctiafieery, to sell the real estate of .T Si deceased, and gave bond as such to the state, ■with J M and C S, Ids sureties,on the 20th of December 1795, and the ac« tion was brought on the ‘bond against C S, one of the sureties, on the 4th of May 130°, who pleaded the act of limitations, to which there was a general demurrer Tlie de« Jnurrer was over-
    Where the replication to a plea of general 4 performance in an fiction on a bond given by a trustee appointed under a decree of th^ court of chancery for the sale of the real estate of .T S, sets out the decree, but does not make a proferí of it, and Stated that by the decree, which was In the usual form, the trustee tyaa directed to bring ?MtQ the court of chancery tita money arising „ from any sale by him made, to be applied, aml**r the chancellor’s directions^ to the purposes mention-* ed in the will of .f S; that the trustee accepted the ti'U<t, gave bond, made the sale, took bonds, ami recciv-d the money. The will of J S was set cut, showing the share and interest of L 5», (for whose use the suit was brought.) in the money arising1 from the sale. The breaches usdghed were*- that the trustee neglected to return an account of his proceedings, or tlie bonds, or' the proportion of ¡he money to which L S was entitled, to be applied, under the chancellor's direction,'to ’he payment of the share of L S, as directed in the will. To- chis replication there was a general demurrer, which the Bounty court overruled, but on appeal reversed
    
      The cause was argued before Chase, Gh. J. and NioaoL3,0n, Eaklk, and Jounsqx, .1,
    
      Brooke, for the Appellant,
    contended, that the .county court ought to have allowed the pleas of limitations; that the saving in the act of limitations, which relates to bonds given in the name or for the use of the oíate, is to be construed to mean only bonds which are given for the pay-; ment of moneys either directly or indirectly, to the state, and that it never was intended to extend to bonds . where the name of the state was used merely for the purpose of facilitating the remedy of a private person, and in the performance of the condition of which bond the state had no interest or concern either directly or indirectly. Another objection to the judgment below was, that thB breach assigned was not within the words or meaning of the condition. The condition is, that the principal in the bond, (who is a trustee to sell real estate,) should perform the decree, or any future order or decree in the premises;. The order or decree should be set out, and as it is a matter of record, a prefert in curia should be made,, and the breach assigned in the nonperformance of the decree or order. • The replication is double, and it is argumentative, and contains matter which ought to be shown in evidence to. the court, as necessary to authorise a suit on the trust bond for the use of Sower, to be so brought, and the writ to be so, endorsed, but is improper matter to be alleged in the replication to show the interest of Sower, and that he had a right to bring the action in the name of the state for his use. It is contended that Sower, ought either to have procured a special order of the court of chancery for the payment of his share ot the money arising from the sate, o.r tliat there should have been an order of the court of chancery directing the bond to be put in suit by the new trustee. In the first case the breach could have, been assigned in the nonpayment of the money due Sower, according to the order of the chancellor; and in the latter case th.e nonpayment of the money to the new trustee, according to the order of the court in the premises. For any thing that appears in this record, Sower may not be entitled to any of the money arising from the sales, as it is, to be dis-i posed of by tl\e order of the court of chancery.
    Taney, for the Appellee.
    In support of the demurrers to the pleas of limitations, it \yill only be remarked, that bonds ‘Hahen in the name or- for the use” of the state, are expressly excepted in the act of 1715, ch, 23; so that this case is within the words and spirit of the excepting clause. It was found necessary, at a subsequent period, (17%9, ch. 24, s. 21,) to pass a new act of limitations as to testamentary and administration, bonds, they being given to the gtate. No authorities ^re cited .-in support of the objec» -fiens to the replications. The trustee was appointed in this case under the act of 1785, ch. 72, s. 4. The action on the bond is given in the same act, section 8. It is believed that no rule of proceeding required the decree to ba plead with a proferí by the plaintiff, nor is any thing stated in the replications but what is necessary to show the interest of Jacob Soiver, and his right to sustain the action on the bond, under the act of assembly. But as the case now stands, neither of these objections can avail the defendant, as the want of a proferí, and duplicity in pleading, can be taken advantage of only on special The demurrers to these replications are general. The different breaches are assigned in the replications according to the statute of Wm. III. Gainsford vs. Griffith, 1 Saund. 58, (note 1.) The act of assembly before cited, does not compel the parly interested to pursue the course pointed out by the appellant’s counsel. It gives his remedy for any breach of the condition directly on the bond. The breaches assigned are, by the demurrers, admitted to have been committed. By tlie law of 1785, ch. 72, s. 8, any party interested who is aggrieved by the trustee, is authorised to support his action on the bond, and to recover judgment for the damages actually sustained by him. It does not compel him to wait until the account of the trustee is liquidated, but gives him a right to sustain his action whenever he is aggrieved. The only questions then are, Í. Is he interested? 2. Is he aggrieved? His interest is distinctly set forth, in the replications, ami admitted by the demurrers; a certain portion of the money arising from the sale of the land is devised to him by ilia will of his^filher. The decree directs, that the money arising from the sale shall be brought, into court, to be applied, under the chancellor’s direction, to the purposes mentioned in the will. ft does not appear that there were any debts to affect it; and in fact there were none. The party, therefore, for whose use the suit is brought, is clearly interested, and the trustee lias broken the condition of his bond in that part in which he is in'e-rested, by not bringing the money into the court of chancery, to be applied to the payment of Sower's share, as the decree directed should be done. It is equally manifest that he is aggrieved by the misconduct of the trustee. He has been prevented from receiving his share of his father’s estate. The money, rightfully due to him, has bees withheld by the trastee, and retained in the trustee’s mvri hands, This is surely an injury done to Sorter. He is thereby aggrieved. He seems, therefore, to be Completely ivithip the description of persons to whom the law gives a right to sustain an action on the bond. He is a party inte*» ■rested, 'and he is a party aggrieved; whenever this is the case the law gives the remedy on the bond. The damages sustained are fixed by agreement, as appears by the re-» cord. The situation of this case show's the justice and ue•bessity of giving the remedy now sought. It is a case that "lifay'often happen again. The trustee died many years ago. There was, it is believed, no administration On his estate» He left no property worth an administration. The trustee being dead, no order can be passed on him by the chancellor. There is no administrator to be made a party before the chancellor. The securities are not parties, to the proceedings, find no order can be passed on them. No report of the sale has been made, as appears by the record, and in fact nolle •was made, “Who then could now be called ofl to report the sale, and settle the-account? Not the trustee, fur he is dead* — not his administrator, for there is none — not the securities, for they are not parties to the trust — And if a new trustee were appointed, he could only settle his own account, and report his own proceedings. He would have, nothing to settle, for the land is sold, and the money received by the former trustee; and there seems to be no one on whom the chancellor could call to report the proceedings of the former trustee, and settle his account, or on whom an order could be passed to pay over the money to a new trustee, to enable him to settle the trust, Jfan administration is necessary in order to liquidate the accounts of the trus.t, it would hardly be required, that the parties interested in the sale should administer on an insolvent estate, and incur the trouble, risk and expense, of the ' administration, for which they could receive no compensation. They never agreed to be responsible for the conduct of the trustee. The securities in the bond have undertaken that responsibility, and if an administration is necessary to protect them, they ought to encounter the burthen. The difficulty has arisen from the misconduct of the trustee in not reporting his proceeding, and settling the trust. If a new trustee has become necessary, that duty and expense ought íq fall oa them, for the same reason. ífthfere are any allowances of deductions that oügíit to be made in favour of the trustee, it is their business to show ibera, and to take the steps that may be necessary for Hint purpose; Indeed, if there were any such deductions, Iney might likve shown ibera, in mitigation of dara.iges, at the trial ef the action oil the bond, and could then have obtained any deduction from the claim of Sower, to wbicli the trustee was entitled, or they «sight yet obtain it by application to the court of chancery, but there is no dis - pute about the damages — they are fixed by the agreement.
    This is the case of a child claiming bis share Of bis father’s estate. lie has been injured by the misconduct of the trustee. íf he must go into chancery* and liquidate the account, before lié can call on the securities, it will subject him to costs, trouble ahd expanse, for which the Securities will not be bound to compensate him; it will tnake him chargeable in part for the misconduct of the trustee. The securities in the bond agree to bind themselves, and do bind themselves for the trustee’s fidelity. The bond is intended for the protection of parties entitled to the money, whó are frequently infants: and if a loss must be sustained, mf expense or trouble incurred by the bad conduct of the trustee, it seems just, and in the true spirit of the asi of assembly, should fall on the securities."
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