Lennard v. Jones ( 1859 )

By the Court.

Lumpkin, J.

delivering the opinion.

This was a suit to recover at law, a debt out of a trust estate. The action was brought against the husband, as trustee; it turning out on the trial, that he had never accepted the trust, the Court granted a nonsuit, refusing to permit the plaintiff to substitute the name of the wife, who was one of the cestui que trusts, in the place of that of the husband.

There can be no doubt that the Court was right, and notwithstanding the Act of 1856, gives the right to sue at law, still it never was designed to confer such power as that here claimed.

We see nothing wrong in the other rulings complained of. In the view already taken of the case, it becomes unnecessary to notice them more particularly.

Before commencing any proceedings, either at law or in equity, counsel would do well to examine and see whether the children should not be parties likewise; provided there be children. Also, how far the giving of the note, in this case, will indicate the intention of the wife to bind her separate property for this debt. This question has been much discussed, and there is no little law learning in the books, upon that point.

Judgment affirmed.

McDonald J. absent.