
    Wilhelm against Miley and others Trustees.
    Saturday, May, 20.
    An action does not lie by a creditor against trustees under a domestic attachment, until they have been called, before the Court which appointed them, to settle their accounts.
    In Error.
    ERROR to the Court of Common Pleas of Lebanon county, in an action brought by Henry Wilhelm against Martin Miley, Jacob Kapp, and Valentine Shaufier, trustees under a domestic attachment which had been issued at the suit of Jacob Wentling against Francis School.
    
    It appeared that the domestic attachment had issued, returnable to May Term, 1814, in the Court of Common Pleas of Lebanon county, and was returned by the sheriff, served, with a schedule annexed of the property attached : and on the 17th May, the defendants were appointed trustees and auditors according to the act of assembly. The present was an action on the case, brought to February Term, 1815, to which the defendants pleaded non assumpsit and payment, with leave, &c., and there was a replication, and issue.
    On the trial, the plaintiff, having proved, by the record, the foregoing facts, and also that the defendants advertised a sale of the property attached, and a meeting of the creditors, and had made sale, and paid the sheriff his fees on the attachment, offered a witness to prove, that on the day advertised, the defendants received the proceeds of sale : that at the said meeting called by the defendants on the 16th July, 1814, the defendants disputed the plaintiff’s demand, and it was agreed to submit it to arbitrators, who were mutually chosen by the plaintiff and defendants ; that the arbitrators met, heard the parties, and awarded against Francis School, § 338 48cts : and they also offered to prove, that the defendants had paid other creditors, ten shillings in the pound of their respective debts. The defendants objected ■to this evidence, and the Court overruled it on the ground, that the defendants had never been sworn or affirmed as trustees, and had not settled their accounts before the Court. To this opinion, the plaintiff excepted.
    
      Weidman, for the plaintiff in error,
    contended that the evidence ought to have been admitted. After selling the property and agreeing to an arbitration with the plaintiff, the defendants cannot be allowed to deny that they are trustees, or to take advantage of the circumstance of their not having been sworn or affirmed. They are bound to pay the creditors. The 8th section of the act of 4th December, 1807, 4 Sm. Laws, 478, gives the trustees power to enter into an arbitration. Nor is it any objection that they have not settled their accounts. The creditor has his election to bring suit at common law, or proceed under the act of assembly.
    
      Buchanan, for the defendants.
    See 1 Johns. 165. Peck v. Trustees of Randall.
    
   The Court,

without hearing the counsel for the defend-

ants, expressed their opinion, that the defendants should have been called before the Court of Common Pleas to settle their accounts, before an action at common law could be supported, and therefore, the evidence was properly rejected.

Judgment affirmed.  