Winchester v. Union Bank , 2 G. & J. 73 ( 1829 )

BtrcHAKAN, Ch. J.,

delivered the opinion of the Court,

This is an action of assumpsit brought by the appellant in Baltimore County Court, as trustee of James Williams, an insolvent debtor.

The declaration contains the usual counts, for goods sold and delivered, money lent, &c., to which there is the general issue plea of non assumpsit.

The appellant claims in the character of trustee; and at the trial, for the purpose of proving his title, and right to recover, produced in evidence the papers and proceedings connected with the application and final discharge of Williams, the insolvent. By which it appears, that the bond given by the appellant for the performance of his duty as trustee, is without security, for which reason the Court below instructed the jury, that he was not entitled to recover. And it is here contended, 1st. That the certificate of the commissioners of insolvent debtors for the city and county of Baltimore, that Williams, the insolvent, had complied with all the requisitions of the insolvent laws, and his final discharge, are conclusive evidence of the regularity of the proceedings, and of the insolvency of Williams, and of the appellant’s right to sue in an action between him as trustee, and a debtor of the insolvent. 2d. That under the insolvent laws of the State, a trustee of an insolvent debtor discharged in the city of Baltimore, is not required to give bond, with security, for the faithful discharge of his duty. And 3d. That if a bond, with security, is required to be given by a trustee of an insolvent debtor, he not having given such a bond, can only be taken advantage of by a debtor of the insolvent, in a suit by the trustee, by a plea in abatement, and not on a plea of non assumpsit.

The whole of these points were raised in argument, and elaborately discussed, in the case of Houck vs. Crouse, decided by this Court at June Term, 1828, in which it was held, that in a suit by a trustee of an insolvent debtor, claiming in his character of trustee, and not in his own right, a general issue plea does not admit the character in which the plaintiff sues, but that such a suit is analagous to the case of an assignee of a bankrupt claiming in that character; and that on the general issue, the plaintiff must prove every thing essential to the showing himself clothed with the character and authority of a trustee; which could not be done by the production of the certificate of the commissioners and the final discharge of the insolvent only, but that all the proceedings must be exhibited. That the different insolvent laws of the State constitute one general system, and must be construed together; and so construed, require a bond, with security, to be given by the trustee, before he can act as such, without which he cannot be invested with the character and rights of a trustee. That to establish his character as trustee, and right to sue in that capacity, it is incumbent on the plaintiff to show that such a bond was given, by proof of the bond itself, and not by the production merely of the certificate of the commissioners, that the insolvent had complied with all the requisitions of the insolvent laws, and his final discharge; and that if he does not do so, the defendant is not driven to a plea in abatement, but may take advantage of it on the general issue. And we have heard nothing in the argument of this case to induce a departui’e from what was decided in the case of Houck vs. Crouse. We concur, therefore, with the Court below, in the instruction given to the jury.

JUDGMENT AFFIRMED.